Holland v. Schuyler et al

Filing 28

FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed, with Prejudice, for Failure to State a Claim re 20 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Gary S. Austin on 7/7/19. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EVERETT HOLLAND,

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Plaintiff,

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vs.

1:16-cv-01271-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM

C. SCHUYLER, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE IN
FOURTEEN DAYS

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Everett Holland (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. This case was initiated by a Complaint filed in Kern

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County Superior Court on September 29, 2015, case BCV-15-010047-DRL. On August 26,

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2016, the case was removed to federal court pursuant to 28 U.S.C. § 1441(a) by defendants

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Sergeant R. Esmond, Associate Warden T. Haak, Correctional Officer (C/O) Hunley, C/O

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Maciejewski, and Associate Warden C. Schuyler. (ECF No. 1.)

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On August 22, 2017, the court screened the Complaint under 28 U.S.C. ' 1915A and

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issued an order dismissing the Complaint for failure to state a claim, with leave to amend.

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(ECF No. 13.) On November 20, 2017, Plaintiff filed the First Amended Complaint. (ECF No.

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20.)

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On February 12, 2018, the court screened the First Amended Complaint and entered

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findings and recommendations to dismiss the case, with prejudice, for failure to state a claim.

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(ECF No. 24.) On November 8, 2018, the district judge declined to adopt the findings and

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recommendations and referred the case back to the Magistrate Judge for further screening to

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assess whether Plaintiff has stated a retaliation claim and if not, whether Plaintiff should be

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granted further leave to amend to attempt to state such a claim. (ECF No. 26.)
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On May 10, 2019, the court conducted a supplemental screening of the First Amended

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Complaint, finding that Plaintiff failed to state a cognizable claim for retaliation. (ECF No.

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27.) The court issued an order dismissing the First Amended Complaint for failure to state a

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claim, with leave to amend. (Id.) Plaintiff was granted thirty days in which to file a Second

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Amended Complaint curing the deficiencies found by the court. (Id.)

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The thirty-day time period has now expired and Plaintiff has not filed a Second

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Amended Complaint or otherwise responded to the court’s screening order. As a result, there is

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no pleading on file which sets forth any claims upon which relief may be granted.

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Accordingly, IT IS HEREBY RECOMMENDED that:
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Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this case be

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DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon

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which relief may be granted under § 1983; and

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2.

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These findings and recommendations are submitted to the United States District Judge

The Clerk be directed to close this case.

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l).

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fourteen (14) days from the date of service of these findings and recommendations, any party

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may file written objections with the court. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to

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file objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

Within

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IT IS SO ORDERED.
Dated:

July 7, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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