(PC)Green v. Martel et al, No. 2:2017cv00429 - Document 22 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/27/2018 RECOMMENDING that this action be dismissed without prejudice for failure to state a claim upon which relief could be granted, and the Clerk be directed to enter judgment and close the case. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)
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(PC)Green v. Martel et al Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WARREN CLEVELAND GREEN, 12 13 14 No. 2:17-cv-0429-JAM-EFB P Plaintiff, v. FINDINGS AND RECOMMENDATIONS MICHAEL MARTEL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. The court dismissed his complaint for failure to state a claim but granted him 19 leave to file an amended complaint. See ECF No. 16 (explaining that plaintiff’s allegations of 20 mail tampering were far too speculative to state a cognizable claim). The court also denied 21 plaintiff’s request for counsel. See ECF No. 16 at 5. Rather than amend his complaint, plaintiff 22 filed a “response” to the court’s order, stating that he cannot file an amended complaint until the 23 court appoints him either an investigator or an attorney. ECF No. 20. For the reasons stated 24 below, the court will neither appoint counsel nor an investigator for plaintiff. And because 25 plaintiff indicates that he will not amend his complaint, this action should be dismissed for failure 26 to state a claim. 27 28 To the extent plaintiff seeks reconsideration of order denying his request for appointment of counsel, that request is denied. Further, his request for appointment of an investigator is 1 Dockets.Justia.com 1 denied. The expenditure of public funds on behalf of an indigent litigant is proper only when 2 authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir.1989). The in forma pauperis 3 statute does not authorize the expenditure of public funds in a civil rights case for the purposes 4 sought by plaintiff. Therefore, the court will not appoint an investigator to assist plaintiff with this 5 case. 6 As noted, plaintiff has declined the opportunity to amend. See ECF No. 20 at 3-4 (stating 7 he cannot file an amended complaint because this action is meant to be a request for an 8 investigation and “not a lawsuit”). Regardless, it appears that any amended complaint would be 9 futile. Plaintiff’s response to the court’s March 15, 2018 order dismissing his complaint with 10 leave to amend demonstrates that he is unable to make his allegations of mail tampering any more 11 concrete. See, e.g., id. at 3 (alleging that the media’s lack of response to his correspondence 12 about his false imprisonment is indicative of mail tampering because “the media [ ] report[s] 13 injustices.”). 14 In light of the above, IT IS HEREBY RECOMMENDED that this action be dismissed 15 without prejudice for failure to state a claim upon which relief could be granted, and the Clerk of 16 the Court be directed to enter judgment and close the case. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 objections shall be served and filed within fourteen days after service of the objections. The 23 parties are advised that failure to file objections within the specified time may waive the right to 24 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 25 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 Dated: November 27, 2018. 27 28 2