Winstead v. Matevousian et al

Filing 19

ORDER DENYING 18 Plaintiff's Objections to Findings and Recommendations signed by Chief Judge Lawrence J. O'Neill on 7/9/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCUS KERNELL WINSTEAD,

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Plaintiff,
v.
ANDRE MATEVOUSIAN, et al.,
Defendants.

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Case No.: 1:17-cv-00951-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S OBJECTIONS
TO FINDINGS AND RECOMMENDATIONS
(ECF No. 18)

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Plaintiff Marcus Kernell Winstead (“Plaintiff”) is a federal prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed.

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Bureau of Narcotics, 403 U.S. 388 (1971).

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On May 1, 2018, the assigned Magistrate Judge issued findings and recommendations that this

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action be dismissed for failure to state a cognizable claim for relief. (ECF No. 12.) Following two

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extensions of time to allow Plaintiff to file objections to those findings and recommendations, on June

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26, 2018, the Court dismissed this action, with prejudice, for failure to state a cognizable claim for

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relief. (ECF Nos. 16, 17.)

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Currently pending before the Court are Plaintiff’s objections to the Magistrate Judge’s findings

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and recommendations, filed June 29, 2018. (ECF No. 18.) Plaintiff states that he was unable to

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submit his objections earlier due to his recent transfer and lack of access to his legal property.
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Plaintiff further states that he does not object to the dismissal of this action, but requests that the

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dismissal be entered without prejudice. Plaintiff argues that he filed this action honestly believing that

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Bivens was a viable avenue for relief, because the Ninth Circuit had previously accepted retaliation

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claims under Bivens. Plaintiff also states that he does not wish to incur a strike against him for filing

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this suit, and that he hopes to pursue this claim through the proper vehicle. (Id.)

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Plaintiff’s objections are unpersuasive. A dismissal without prejudice is appropriate where, as

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here, the deficiencies in the complaint are not subject to cure by amendment. Although Plaintiff may

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have honestly believed that he could proceed in this action under Bivens, this belief does not provide a

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basis for a dismissal without prejudice and the corresponding ability to refile suit on the same claims

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and for the same relief. The Court finds no basis for reconsidering the Magistrate Judge’s findings and

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recommendations, or the Court’s order adopting them in full

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s objections to the Magistrate Judge’s
findings and recommendations, (ECF No. 18), are DENIED. This action remains closed.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

July 9, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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