Duran v. Lewis et al

Filing 17

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 15 , DISMISSING This Action for Failure to State a Cognizable Claim for Relief; ORDER That This Dismissal Count as a Strike Pursuant to 28 U.S.C. § 1915(g); ORDER Directing Clerk of Court to Terminate Case, signed by District Judge Anthony W. Ishii on 6/27/17. (CASE CLOSED)(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS DURAN, Plaintiff, 12 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, (Doc. No. 15), DISMISSING THIS ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF v. 13 14 Case No. 1:16-cv-00468-AWI-SAB (PC) GAIL LEWIS, et al., 15 Defendants. ORDER THAT THIS DISMISSAL COUNT AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g) 16 ORDER DIRECTING CLERK OF COURT TO TERMINATE CASE 17 18 19 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. 21 § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 22 636(b)(1)(B) and Local Rule 302. 23 On September 19, 2016, the assigned magistrate judge issued findings and 24 recommendations recommending that this matter be dismissed for the failure to state a claim 25 upon which relief may be granted. (Doc. No. 15.) Plaintiff was provided an opportunity to file 26 objections to the findings and recommendations within thirty days. On October 5, 2016, Plaintiff 27 timely filed objections to the findings and recommendations. (Doc. No. 16.) 28 /// 1 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 3 including Plaintiff’s objections, the court finds the findings and recommendations to be 4 supported by the record and proper analysis. 5 Plaintiff’s objections merely re-allege the allegations of his complaint that he was housed 6 at Pleasant Valley State Prison from 2004 to 2014, and was exposed to Valley Fever spores, 7 which Defendants never advised the risk of, and that he was at a greater risk of contracting 8 Valley Fever due to this race. As the magistrate judge correctly found, Plaintiff cannot state a 9 claim upon which relief may be granted based solely on the mere exposure to Valley Fever 10 spores. See King v. Avenal State Prison, 2009 WL 546212, at *4 (E.D. Cal. Mar. 4, 2009); 11 Tholmer v. Yates, 2009 WL 174162, at *3 (E.D. Cal. Jan. 26, 2009); Hines v. Yousseff, 2015 12 WL 164215, at *5 (E.D. Cal. Jan. 13, 2015). 13 Accordingly, THE COURT HEREBY ORDERS that: 14 1. September 19, 2016 (Doc. No. 15), are ADOPTED IN FULL; 15 16 The findings and recommendations filed by the assigned magistrate judge on 2. This action is dismissed for the failure to state a claim upon which relief could be granted; 17 18 3. The Clerk of the Court is directed to close this case; and 19 4. This dismissal shall count as a strike pursuant to 28 U.S.C. § 1915(g). 20 21 IT IS SO ORDERED. 22 Dated: June 27, 2017 SENIOR DISTRICT JUDGE 23 24 25 26 27 28 2

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