Summary
In Pulido-Esparza, the Court noted that El-Shaddai, Knapp, and Harris collectively suggest that if a complaint fails to state a claim for relief or is frivolous or malicious, and the Plaintiff fails to amend the complaint and the case is dismissed (either by the Court or by voluntary dismissal of Plaintiff) such dismissal constitutes a strike under § 1915(g).
Summary of this case from Spencer v. ValdezOpinion
1:20-cv-01176-JLT-GSA-PC
08-09-2023
EDWARD B. SPENCER, Plaintiff, v. PULIDO-ESPARZA, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL
(DOC. 18.)
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND; ORDER FOR THIS CASE TO PROCEED WITH THE FIRST AMENDED COMPLAINT AGAINST DEFENDANT CDCR FOR VIOLATION OF THE ADA; AND ORDER DISMISSING ALL OTHER CLAIMS AND DEFENDANTS, WITHOUT LEAVE TO AMEND
(DOC. 13.)
Edward B. Spencer is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (1994).
The assigned magistrate judge issued findings and recommendations, recommending that plaintiff's motion for leave to amend (Doc. 17) be denied, that this case proceed only on plaintiff's ADA claims against defendant CDCR, and that all other claims and defendants be dismissed for failure to state a claim, without leave to amend. (Doc. 18.) Plaintiff filed objections to the findings and recommendations and lodged a proposed Second Amended Complaint. (Docs. 19, 20.)
According to 28 U.S.C. § 636 (b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Plaintiff's objections and proposed Second Amended Complaint, the court finds the findings and recommendations to be supported by the record and by proper analysis. Thus, the Court ORDERS:
1. The findings and recommendations issued by the magistrate judge on May 10, 2023, are ADOPTED IN FULL.
2. Plaintiff's motion for leave to amend the complaint is DENIED.
3. This case now proceeds only with plaintiff's ADA claims against Defendant CDCR.
4. All remaining claims and defendants are dismissed from this action, without leave to amend.
5. This case is referred to the magistrate judge for further proceedings, including initiation of service of process.
IT IS SO ORDERED.