Warfield v. McCough et al
ORDER signed by Magistrate Judge Craig M. Kellison on 12/1/2017 DISMISSING CASE. Clerk of Court is directed to enter judgment, terminate all pending motions, and close this file. CASE CLOSED. (Henshaw, R)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
HEATHER McCOUGH, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.
§ 636(c) and no other party has been served or appeared in the action. On September 20, 2017,
the court directed plaintiff to show cause why this action should not dismissed for failure to state
a claim, and warned plaintiff that failure to respond could result in dismissal of the action for
lack of prosecution. See Local Rule 110. In the order to show cause, the court stated:
Plaintiff names the following as defendants: (1) Heather
McCough; (2) Solano County SPCA; (3) Solan County Custody Div.; and
(4) Mike Donnelly, aka “Christopher.” Neither Heather McCough nor
Mike Donnelly, aka “Christopher,” are alleged to be government officials.
Plaintiff outlines three claims. In his first claim, plaintiff alleges that
defendant McCough stole his dog. In his second claim, plaintiff appears to
claim that unnamed officials at the Solano County Jail interfered with his
access to the courts by improperly handling his legal mail. In his third
claim, plaintiff alleges that unnamed officials at the Solano County Jail
improperly ignored his reports that he saw the actual perpetrator
(defendant Mike Donnelly, aka “Christopher”) of the crimes for which he
was convicted on television.
The complaint suffers from a number of fatal defects. First,
plaintiff does not name any individual defendant who is alleged to be a
government official. Because the private parties named in the complaint
did not act under color of state law, plaintiff has not stated a cognizable
§ 1983 claim against them. See Price v. Hawai’i, 939 F.2d 702 (1991).
Next, plaintiff does not allege an actual injury – such as prejudice with
respect to contemplated or existing litigation, the inability to meet a filing
deadline, or inability present a non-frivolous claim – in regard to his claim
that unnamed jail officials improperly handled his legal mail. See id.; see
also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Finally, with
respect to plaintiff’s third claim, plaintiff does not allege any violation of
his constitutional or statutory rights.
To date, plaintiff failed to respond to the order to show cause and the court finds that dismissal of
the action is appropriate, both for the substantive reasons outlined in the order to show cause as
well as for failure to comply with court rules and orders.
Accordingly, IT IS HEREBY ORDERED that:
This action is dismissed; and
The Clerk of the Court is directed to enter judgment, terminate all pending
motions, and close this file.
DATED: December 1, 2017
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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