Knapp v. Virk et al

Filing 26

ORDER DISMISSING CASE, With Prejudice, for Failure to State a Claim and ORDER That This Dismissal is Subject to the "Three-Strikes" Provision of 28 U.S.C. 1915(g) signed by Magistrate Judge Gary S. Austin on 7/7/2017. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID KNAPP, 12 Plaintiff, 13 14 vs. 1:15-cv-00961-GSA-PC ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 19.) VIRK, et al., 15 Defendants. 16 ORDER THAT THIS DISMISSAL IS SUBJECT TO THE “THREE STRIKES” PROVISION OF 28 U.S.C. § 1915(g) ORDER FOR CLERK TO CLOSE CASE 17 18 19 20 I. BACKGROUND 21 David Knapp (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. On June 25, 2015, Plaintiff filed the 23 Complaint commencing this action. (ECF No. 1.) 24 On July 6, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action 25 pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 5.) 26 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 27 California, the undersigned shall conduct any and all proceedings in the case until such time as 28 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 1 1 On November 4, 2015, the court dismissed the Complaint for failure to state a claim, 2 with leave to amend within thirty days. (ECF No. 6.) Plaintiff requested and was granted four 3 extensions of time. (ECF Nos. 7, 8, 9, 10, 11, 12, 13, 14.) The final deadline to amend the 4 Complaint expired, and Plaintiff did not file an amended complaint. (Court record.) On June 5 30, 2016, the court issued an order to show cause, requiring Plaintiff to show cause why this 6 case should not be dismissed for failure to prosecute. (ECF No. 16.) After being granted 7 another extension of time, Plaintiff filed the First Amended Complaint on August 9, 2016. 8 (ECF No. 19.) The court then discharged the order to show cause. (ECF No. 20.) 9 On March 30, 2017, the court dismissed the First Amended Complaint for failure to 10 state a claim, with leave to amend within thirty days. (ECF No. 23.) Plaintiff requested and 11 was granted an extension of time. (ECF Nos. 24, 25.) The latest deadline has now expired, and 12 Plaintiff has not filed the Second Amended Complaint. (Court record.) 13 In the March 30, 2017 order, the court informed Plaintiff of the deficiencies in the First 14 Amended Complaint and dismissed it on the ground that Plaintiff had failed to state a claim 15 upon which relief could be granted. As a result, there is no pleading on file in this case which 16 sets forth any claims upon which relief may be granted. Plaintiff was forewarned in the March 17 30, 2017 order that this case would be dismissed for failure to state a claim if he did not file the 18 Second Amended Complaint. (ECF No. 23 at 9 ¶5.) Therefore, the Court now dismisses the 19 claims made in the First Amended Complaint, with prejudice, for failure to state a claim upon 20 which the Court could grant relief. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) 21 (prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for 22 failure to state a claim). 23 II. CONCLUSION 24 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 25 1. 26 This case is dismissed, with prejudice, for failure to state a claim upon which relief may be granted; 27 /// 28 /// 2 1 2. 2 3 This dismissal is subject to the “three strikes” provision of 28 U.S.C. § 1915(g); and 3. The Clerk is directed to close this case. 4 5 6 7 IT IS SO ORDERED. Dated: July 7, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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