(PC) Franks v. Johnson et al, No. 1:2020cv00551 - Document 18 (E.D. Cal. 2020)
Court Description: ORDER ADOPTING 14 Findings and Recommendations and DISMISSING Action, signed by District Judge Dale A. Drozd on 12/1/2020. CASE CLOSED. (Rivera, O)
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(PC) Franks v. Johnson et al Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOM M. FRANKS 12 No. 1:20-cv-00551-DAD-BAM (PC) Plaintiff, 13 v. 14 JOHNSON, et al., 15 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION Defendants. (Doc. No. 14) 16 17 Plaintiff Tom M. Franks is a state prisoner proceeding pro se and in forma pauperis in this 18 19 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On September 28, 2020, the assigned magistrate judge screened plaintiff’s first amended 21 22 complaint and issued findings and recommendations, recommending that this action be dismissed 23 due to plaintiff’s failure to state a cognizable claim upon which relief may be granted. (Doc. No. 24 14.) Those findings and recommendations were served on plaintiff and contained notice that any 25 objections thereto were to be filed within fourteen (14) days from the date of service. (Id.) 26 Following the granting of an extension of time to do so, plaintiff filed objections on October 29, 27 2020. (Doc. No. 15.) 28 ///// 1 Dockets.Justia.com 1 In his objections, plaintiff argues in part that he filed this action pursuant to 42 U.S.C. 2 § 1983, rather than as a habeas action, because he received permission to do so from the court in 3 Case No. 1:20-cv-00136-NONE-EPG-HC. (Doc. No. 17 at 6.) Plaintiff made this argument in 4 response to the statement appearing in the pending findings and recommendations that “[t]o the 5 extent Plaintiff is attempting to challenge the legality of his custody, he may not do so in a 6 Section 1983 proceeding.” (Doc. No. 14 at 6.) However, while plaintiff may have received 7 guidance from the court as to the appropriate vehicle by which to file this action, plaintiff must 8 still allege facts stating a cognizable claim for relief, and he has failed to do so here.1 9 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 10 de novo review of the case. Having carefully reviewed the entire file, the court finds the findings 11 and recommendations to be supported by the record and by proper analysis. 12 Accordingly, 13 1. The findings and recommendations issued on September 28, 2020 (Doc. No. 14) are 14 adopted in full; 15 2. This action is dismissed due to plaintiff’s failure to state a claim; and 16 3. The Clerk of the Court is directed to close this case. 17 IT IS SO ORDERED. 18 Dated: December 1, 2020 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 1 The court further notes that plaintiff has apparently raised the exact same claims in several other actions he has brought. See, e.g., Franks v. Johnson, Case No. 1:20-cv-00367-AWI-SAB (E.D. Cal.) (dismissed for failure to state a claim on May 1, 2020); Franks v. Johnson, Case No. 2:20cv-04635-VBF-PD (C.D. Cal.) (pending). 2
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