Opinion
1:12-cv-1088-AWI-EPG-PC
07-28-2016
BILLY RAE MALDONADO, Plaintiff, v. PLEASANT VALLEY STATE PRISON, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(ECF No. 23.) ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(g) ORDER FOR CLERK TO CLOSE CASE
Billy Rae Maldonado ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 12, 2016, findings and recommendations were entered, recommending that this action be dismissed based on Plaintiff's failure to state a claim upon which relief may be granted under §1983. (ECF No. 23.) On June 23, 2016, Plaintiff filed objections to the findings and recommendations. (ECF No. 26.)
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's objections, the Court finds the findings and recommendations to be supported by the record and proper analysis. Plaintiff relies on a single incident in which his buttocks and scrotum were touched by a prison guard during the course of what appears to be an otherwise legitimate pat-down search. The facts that are alleged are comparable with other cases in which no constitutional violation was found based on allegations of improper touching. See, e.g., Cavalier v. County of San Diego, 2015 U.S. Dist. LEXIS 80754, *6-*7, *44-*45 (S.D. Cal. May 13, 2015) (and cases cited therein); Trotter v. Haws, 2010 U.S. Dist. LEXIS 141715, *11-*13 (C.D. Cal. Dec. 13, 2010) (and cases cited therein); Smith v. L.A. Cnty., 2010 U.S. Dist. LEXIS 61985, *12-*16 (C.D. Cal. Apr. 22, 2010); Osterloth v. Hopwood, 2006 U.S. Dist. LEXIS 102069, *13-*17 (D. Mont. Oct. 11, 2006). Plaintiff's objections are overruled.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations issued by the Magistrate Judge on April 12, 2016 (Doc. No. 23) are adopted in full;IT IS SO ORDERED. Dated: July 28, 2016
2. This action is dismissed, with prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted under § 1983;
3. This dismissal is subject to the "three-strikes" provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and
4. The Clerk of Court is directed to close this case.
/s/_________
SENIOR DISTRICT JUDGE