Clarke v. San Joaquin County Sheriff Department

Filing 18

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/19/2017 ORDERING the Clerk to assign a district court judge to this case and RECOMMENDING this action be dismissed without prejudice. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL E. CLARKE, 12 Plaintiff, 13 14 15 No. 2:16-cv-1520 CKD P v. ORDER AND SAN JOAQUIN COUNTY SHERIFF’S DEPARTMENT, 16 FINDINGS AND RECOMMENDATIONS Defendant. 17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 18 19 rights under 42 U.S.C. § 1983. On February 2, 2017, the court screened plaintiff’s amended 20 complaint as the court is required to do under 28 U.S.C. § 1915A(a). Plaintiff’s amended 21 complaint was dismissed with leave to file a second amended complaint. Plaintiff filed his 22 second amended complaint on May 16, 2017. The court is required to screen complaints brought by prisoners seeking relief against a 23 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 //// 1 1 When considering whether a complaint states a claim upon which relief can be granted, 2 the court must accept the allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 89, 3 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer 4 v. Rhodes, 416 U.S. 232, 236 (1974). 5 Plaintiff alleges two San Joaquin County Deputy Sheriffs released an attack dog upon 6 plaintiff in June of 2014, causing severe damage to plaintiff’s left arm. Plaintiff does not identify 7 the deputy sheriffs so there are no viable defendants. 8 When the court dismissed plaintiff’s amended complaint, the court indicated plaintiff 9 would be granted one more opportunity to state a claim upon which he may proceed. Because 10 plaintiff does not identify in his second amended complaint any defendant against whom this 11 action may proceed, and it does not appear he would be able to in a third amended complaint, the 12 court will recommend that this action be dismissed without prejudice. 13 14 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case. 15 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 16 These findings and recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, plaintiff may file written objections 19 with the court. The document should be captioned “Objections to Findings and 20 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 21 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 22 Cir. 1991). 23 Dated: September 19, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 25 26 27 1 clar1520.fnrs 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?