Diaz v. Fox et al

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 05/28/15 recommending that this action be dismissed with prejudice for failure to state a claim. Referred to Judge John A. Mendez. 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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MIGUEL DIAZ,

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No. 2:14-cv-2705 JAM CKD P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

R. FOX, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief

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pursuant to 42 U.S.C. § 1983. On January 20, 2015, plaintiff’s complaint was dismissed for

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failure to state a claim, and he was granted one opportunity to amend. Before the court is

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plaintiff’s amended complaint (“FAC”), filed on April 13, 2015. (ECF No. 12.)

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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Having reviewed the FAC, the undersigned concludes that it fails to state a claim under

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the legal standards set forth in the January 20, 2015 screening order. Because it appears that

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another round of amendment would be futile, the undersigned will recommend dismissal of this
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action.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with
prejudice for failure to state a claim.

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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: May 28, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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