(PC) Coleman v. Director of Corrections et al, No. 1:2009cv00335 - Document 24 (E.D. Cal. 2011)
Court Description: ORDER signed by Judge Oliver W. Wanger on 3/2/2011 adopting in full 22 FINDINGS AND RECOMMENDATIONS; dismissing action with prejudice; dismissal shall count as a strike pursuant to 28 USC 1915(g). CASE CLOSED.(Lundstrom, T)
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(PC) Coleman v. Director of Corrections et al Doc. 24 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SAADHI COLEMAN, 10 11 12 13 CASE NO. 1:09-cv-00335-OWW-GBC PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION BE DISMISSED IN ITS ENTIRETY FOR FAILURE TO STATE A CLAIM v. DIRECTOR OF CORRECTIONS, et al., Defendants. (Docs. 22, 23) / 14 15 Plaintiff Saadhi Coleman (“Plaintiff”), a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on February 24, 17 2009. (Doc. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 18 § 636(b)(1)(B) and Local Rule 302. On July 7, 2009, the Magistrate Judge issued an order 19 dismissing the complaint, with leave to amend, for failure to state a claim. (Doc. 9.) On December 20 1, 2009, findings and recommendations were issued recommending dismissing the first amended 21 complaint, with prejudice, for failure to state a claim. (Docs. 10, 11.) Plaintiff filed objections to 22 the findings and recommendations on January 6, 2010, requesting leave to amend the complaint due 23 to the retaliatory acts of the defendant. (Doc. 12.) A notice of motion to amend and a second 24 amended complaint were filed on January 7, 2010. (Doc. 13, 16.) 25 The Magistrate Judge vacated the previous findings and recommendations and issued an 26 order directing Plaintiff to file a second amended complaint on January 8, 2010. (Doc. 15.) On 27 28 1 Dockets.Justia.com 1 December 1, 2010, the third amended complaint1 was dismissed, with leave to amend, for failure to 2 state a claim. (Docs. 17, 20.) Based upon Plaintiff’s objection to the previous findings and 3 recommendation, the order included the legal standard to state a claim for retaliation. A fourth 4 amended complaint was filed on January 11, 2011. (Doc. 21.) On January 19, 2011, findings and 5 recommendations were issued recommending dismissing the action, in its entirety, for failure to state 6 a claim. (Doc. 22.) Plaintiff filed objections on February 24, 2011, stating the Magistrate Judge 7 misconstrued his complaint and requesting leave to amend to state a claim for retaliation. (Doc. 23.) 8 While “[l]eave to amend should be granted if it appears at all possible that the plaintiff can 9 correct the defect,” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal citations omitted), 10 in this action Plaintiff has been granted four opportunities to amend the complaint, with guidance 11 by the Magistrate Judge. Plaintiff has now filed five complaints without alleging facts against any 12 of the defendants sufficient to state a claim under § 1983. The undersigned finds that Plaintiff is not 13 able to cure the complaint by amendment, and therefore further leave to amend will not be granted. 14 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 15 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 16 conducted a de novo review of this case. Having carefully reviewed the entire file, the undersigned 17 finds the findings and recommendations to be supported by the record and by proper analysis. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The findings and recommendations, filed January 19, 2011, are adopted in full; 20 2. This action, is dismissed, with prejudice, based on Plaintiff’s failure to state a claim 21 upon which relief may be granted under section 1983; 22 3. This dismissal shall count as a strike pursuant to 28 U.S.C. § 1915(g); and 23 4. The Clerk of the Court is directed to close this case. 24 IT IS SO ORDERED. 25 Dated: March 2, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 26 27 28 1 The third amended complaint was incorrectly docketed as second amended complaint. 2
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