Opinion
CASE No. 1: 14-cv-00580-LJO-MJS (PC)
02-22-2018
PATRICIA A. MCCOLM, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO:
1) DISMISS WITH PREJUDICE ALL CLAIMS EXCEPT PLAINTIFF'S ADA CLAIMS, FIRST AMENDMENT CLAIMS FOR RETALIATION, AND ACCESS TO COURTS, AND EIGHTH AMENDMENT CLAIMS FOR EXCESSIVE FORCE AND FAILURE-TO-PROTECT ; AND
2) DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM
(ECF No. 47)
THIRTY DAY DEADLINE TO FILE AN AMENDED COMPLAINT
Plaintiff is a former state prisoner proceeding pro se in this civil rights action brought 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 of the United States District Court for the Eastern District of California.
On August 14, 2017, the Magistrate Judge screened Plaintiff's first amended complaint and found that it did not state any cognizable claims. (ECF No. 47.) Findings and recommendations were issued recommending that Plaintiff be given leave to amend on her claims relating to the Americans with Disability Act, First Amendment access to courts, First Amendment retaliation, Eighth Amendment excessive force, and Eighth Amendment failure-to-protect; but that all other claims be dismissed with prejudice. (Id.) Plaintiff filed objections. (ECF No. 52.)
This was erroneously described in the screening order as a Fourteenth Amendment claim. However, the Magistrate Judge correctly applied a First Amendment analysis to this claim. --------
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis. Plaintiff's objections do not raise an issue of fact or law under the findings and recommendations. The standards that her claims must meet are clearly laid out in this Court's screening orders and her amended complaint does not meet these standards. Plaintiff was given multiple opportunities to file an amended complaint that states a claim and she has not done so. With regard to the claims that are to be dismissed with prejudice, the defects do not appear to be capable of cure through amendment.
Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the August 14, 2017, findings and recommendations (ECF No. 47) in full;
2. Plaintiff's first amended complaint is dismissed for failure to state a claim;
3. All claims except Plaintiff's ADA, First Amendment retaliation and access to courts, and Eighth Amendment excessive force and failure-to-protect claims, are dismissed with prejudice:
4. Within thirty days of the date of this order, Plaintiff shall file a second amended complaint curing the deficiencies identified in the screening order
regarding her claims for violation of the ADA, First Amendment retaliation and access to courts, and Eighth Amendment excessive force and failure-to-protect;IT IS SO ORDERED.
5. Failure to file an amended complaint within the time stated may result in dismissal of the action without further notice to Plaintiff.
Dated: February 22 , 2018
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE