Thomas Butler v. Perez et al

Filing 11

ORDER ADOPTING 9 FINDINGS AND RECOMMENDATIONS; ORDER Dismissing Action, with Prejudice, for Failure to State a Claim and Failure to Comply with a Court Order; ORDER that Dismissal is Subject to 28 U.S.C. § 1915(g) signed by District Judge Anthony W. Ishii on 04/24/2017. CASE CLOSED. (Flores, E)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 THOMAS BUTLER, 8 Plaintiff, 9 10 v. PEREZ, et al., 11 Defendants. 12 1:16-cv-00820-AWI-EPG (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (ECF NOS. 1, 8, & 9) ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM AND FAILURE TO COMPLY WITH A COURT ORDER 13 ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(g) 14 ORDER FOR CLERK TO CLOSE CASE 15 Thomas Butler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 16 17 with this civil rights action pursuant to 42 U.S.C. § 1983. 18 commencing this action on June 13, 2016. (ECF No. 1). The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Plaintiff filed the complaint 20 On February 15, 2017, Magistrate Judge Erica P. Grosjean entered findings and 21 recommendations, recommending that this action be dismissed, with prejudice, for failure to 22 state a claim upon which relief may be granted under § 1983 and failure to comply with a court 23 order. (ECF No. 9). Plaintiff was provided an opportunity to file objections to the findings and 24 recommendations within thirty days. The thirty-day period has expired and Plaintiff has not 25 filed objections to the findings and recommendations.1 26 27 28 1 While Plaintiff did not object, on March 30, 2017, he filed a “stay of complaint.” ECF No. 10. The stay of complaint states that Plaintiff wishes to stand on his initial complaint. It also seems to ask for a stay of this case because Plaintiff is housed in Administrative Segregation with little to no access to supplies or the law library. 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 the Court finds the findings and recommendations to be supported by the record and proper 4 analysis. 5 Accordingly, THE COURT HEREBY ORDERS that: 6 1. The findings and recommendations issued by Magistrate Judge Erica P. Grosjean on 7 February 15, 2017, are ADOPTED IN FULL; 8 2. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B)(ii) this action is 9 DISMISSED based on Plaintiff’s failure to state a claim upon which relief may be 10 granted under § 1983, as well as Plaintiff’s failure to comply with a Court order; 11 3. This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. § 12 13 1915(g). Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015); and 4. The Clerk of Court is directed to CLOSE this case. 14 15 16 IT IS SO ORDERED. Dated: April 24, 2017 SENIOR DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 Given that Plaintiff wishes to stand on his initial complaint, and the fact that the Court has found that the initial complaint fails to state a claim upon which relief may be granted, the Court will not stay this case. 2

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