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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAMUEL E. CLARKE,

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Plaintiff,

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No. 2:16-cv-1520 CKD P

v.

ORDER AND

SAN JOAQUIN COUNTY SHERIFF’S
DEPARTMENT,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On February 2, 2017, the court screened plaintiff’s amended

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complaint as the court is required to do under 28 U.S.C. § 1915A(a). Plaintiff’s amended

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complaint was dismissed with leave to file a second amended complaint. Plaintiff filed his

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second amended complaint on May 16, 2017.
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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When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 89,

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93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer

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v. Rhodes, 416 U.S. 232, 236 (1974).

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Plaintiff alleges two San Joaquin County Deputy Sheriffs released an attack dog upon

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plaintiff in June of 2014, causing severe damage to plaintiff’s left arm. Plaintiff does not identify

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the deputy sheriffs so there are no viable defendants.

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When the court dismissed plaintiff’s amended complaint, the court indicated plaintiff

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would be granted one more opportunity to state a claim upon which he may proceed. Because

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plaintiff does not identify in his second amended complaint any defendant against whom this

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action may proceed, and it does not appear he would be able to in a third amended complaint, the

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court will recommend that this action be dismissed without prejudice.

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In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court
assign a district court judge to this case.

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

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These findings and recommendations will be 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. The document should be captioned “Objections to Findings and

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

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Dated: September 19, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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clar1520.fnrs

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