-SKO (PC) Carroll v. Clark et al, No. 1:2009cv01701 - Document 29 (E.D. Cal. 2011)

Court Description: ORDER Adopting Findings and Recommendations, Dismissing Action With Prejudice for Failure to State a Claim Under Section 1983, and Directing Clerk of Court to Enter Judgment 18 , 20 , 23 ; ORDER Counting Dismissal as a Strike Under 28 U.S.C. , signed by Judge Oliver W. Wanger on 4/14/2011. CASE CLOSED. (Gonzalez, R)
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-SKO (PC) Carroll v. Clark et al Doc. 29 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 VERNON D. CARROLL, 10 11 12 CASE NO. 1:09-cv-01701-OWW-SKO PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT v. KEN CLARK, et al., 13 Defendants. (Docs. 18, 20, and 23) 14 ORDER COUNTING DISMISSAL AS A STRIKE UNDER 28 U.S.C. § 1915(G) 15 / 16 17 Plaintiff Vernon D. Carroll, a state prisoner proceeding pro se and in forma pauperis, filed 18 this civil rights action pursuant to 42 U.S.C. § 1983 on September 28, 2009. The matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 25, 2011, a Findings and Recommendations was filed in which the Magistrate 21 Judge screened Plaintiff’s amended complaint and recommended dismissal of this action for failure 22 to state a claim under section 1983. 28 U.S.C. § 1915A. After receiving an extension of time, 23 Plaintiff filed a timely Objection on April 11, 2011.1 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de 25 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 26 27 1 28 Plaintiff also seeks an order directing the United States Marshal to initiate service of process. That request is moot in light of this order and is denied. 1 Dockets.Justia.com 1 Recommendations to be supported by the record and by proper analysis. Plaintiff has not stated any 2 claims for violation of the Eighth Amendment and this action shall be dismissed. In his objections, 3 Plaintiff references contributory and comparative negligence. (Doc. 28, p. 2.) The Court expresses 4 no opinion whether Plaintiff may be able to state any claims under California tort law, as absent a 5 viable federal claim, the Court will not exercise supplemental jurisdiction over state law claims. 28 6 U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 7 2001). 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. 10 11 The Court adopts the Findings and Recommendations filed on February 25, 2011, in full; 2. 12 This action is dismissed, with prejudice, for failure to state a claim under section 1983; 13 3. The Clerk of the Court shall enter judgment against Plaintiff; and 14 4. This dismissal counts as a strike under 28 U.S.C. § 1915(g). 15 16 IT IS SO ORDERED. 17 Dated: April 14, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2