Whitaker v. Crane, et al.

Filing 27

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 1/16/15 vacating 25 FINDINGS AND RECOMMENDATIONS. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH WHITAKER,

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No. 2:13-cv-00505 KJM DAD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CRANE, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42
U.S.C. § 1983.
On August 4, 2014, the court denied plaintiff‟s application for a temporary restraining

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order and dismissed plaintiff‟s Second Amended Complaint pursuant to 28 U.S.C. § 1915A for

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failure to state a claim upon which relief may be granted. (See ECF No. 23.) The court granted

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plaintiff leave to file a Third Amended Complaint, and also directed plaintiff to file, within 30

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days, a new application to proceed in forma pauperis that included a certified copy of his prison

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trust account statement for the preceding six-month period. (Id.) Plaintiff was also informed that

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“the court will not review any Third Amended Complaint he may elect to file unless he also

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submits a new and properly completed in forma pauperis application.” (Id. at 3.) Finally,

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plaintiff was warned that “failure to comply with this order will result in a recommendation that

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this action be dismissed without prejudice.” (Id. at 8.)

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Plaintiff filed neither a new application to proceed in forma pauperis nor a Third

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Amended Complaint. Accordingly, on December 3, 2014, the court filed Findings and

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Recommendations recommending dismissal of the action without prejudice. (ECF No. 25.)

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On December 17, 2014, plaintiff filed a Third Amended Complaint. (ECF No. 26.)

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However, he failed to file an application to proceed in forma pauperis. Out of an abundance of

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caution, the court has nevertheless reviewed plaintiff‟s Third Amended Complaint. Plaintiff

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therein alleges as follows. On August 23, 2012, Correctional Officer L. Crane threatened to kill

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him. Plaintiff filed an administrative grievance with then-Sergeant, now-Lieutenant Jones. Jones

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told plaintiff, “Shut up, I‟m tired of you,” and then ordered plaintiff to submit to being handcuffed

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or else be pepper-sprayed. Plaintiff responded, “I‟ll 1983 you,” to Jones. Plaintiff was then

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placed in a Mental Health Crisis Bed (“MHCB”). Plaintiff alleges that he was denied proper

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administrative procedures in connection with his placement in a MHCB. Plaintiff seeks

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$700,000,000 in damages. (Id.at 4.)

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The court finds that, like plaintiff‟s previously-filed complaints, the Third Amended

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Complaint fails to articulate an actionable claim for relief against any named defendant despite

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the fact that the court has previously instructed plaintiff regarding the standards for stating a

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cognizable First Amendment retaliation claim. See Huskey v. City of San Jose, 204 F.3d 893,

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899 (9th Cir. 2000) (not every allegedly adverse action will support such a claim and cognizable

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retaliation claim cannot rest on “the logical fallacy of post hoc, ergo propter hoc, literally, „after

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this, therefore because of this‟”). Moreover, although plaintiff states that he is in a prison hospital

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and suffers from MRSA, he has not explained how these circumstances have prevented him from

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filing an in forma pauperis application as directed in the four months that have passed since the

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court‟s filing of the previous findings and recommendations.

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In light of the foregoing, IT IS HEREBY ORDERED that the findings and
recommendations filed on August 4, 2014 (ECF No. 25) be vacated.

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IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.

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

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge‟s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: January 16, 2015

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DAD:10
whit0505.dism

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