(PC) Kinkade v. Avenal State Prison

Opinion

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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 ROBERT WILLIAM KINKADE, Case No. 1:23-cv-00964 JLT EPG (PC) 11 Plaintiff, ORDER ADOPTING IN FULL THE 12 FINDINGS AND RECOMMENDATIONS v. TO DISMISS THIS ACTION WITHOUT 13 PREJUDICE FOR FAILURE TO AVENAL STATE PRISON, PROSECUTE AND FAILURE TO 14 COMPLY WITH COURT’S ORDERS, Defendant. AND DIRECTING THE CLERK OF 15 COURT TO CLOSE THE CASE

16 (Doc. 11)

17 18 Plaintiff Robert Kinkade is proceeding pro se and in forma pauperis in this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleged that the water at Avenal State 20 Prison is contaminated. (Doc. 1.) The Court referred the matter to a United States Magistrate 21 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 The assigned magistrate screened Plaintiff’s complaint pursuant to 28 U.S.C. 23 § 1915A(a) and found that “Plaintiff’s complaint fails to state any cognizable claims.” (Doc. 24 10 at 6.) The magistrate judge gave Plaintiff 30 days to either file an amended complaint or file 25 a statement with the Court that he wants to stand on his original complaint. (Id. at 7). After 26 that time has passed, and Plaintiff has done neither, the magistrate judge recommended that this 27 action be dismissed without prejudice for failure to prosecute and for failure to comply with 28 Court’s orders. (Doc. 11 at 4.) eee IEE I I ROI IE II IIE RE

1 The Court served the Findings and Recommendations on Plaintiff and notified him that 2 || any objections were due within 30 days. (Doc. 11 at 4.) The Court advised Plaintiff that the 3 || “failure to file objections within the specified time may result in the waiver of rights on 4 || appeal.” (d., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Plaintiff did 5 || not file objections, and the time to do so has passed. 6 According to 28 U.S.C. § 636 (b)(1)(C), this Court conducted a de novo review of this 7 |! case. Having carefully reviewed the entire action, the Court concludes the Findings and 8 || Recommendations to be supported by the record and proper analysis. 9 Thus, the Court ORDERS: 10 1. The Findings and Recommendations issued on March 4, 2024 (Doc. 11) are M ADOPTED in full. 12 2. This case is DISMISSED without prejudice for failure to prosecute and failure 13 to comply with Court’s orders.! 14 3. The Clerk of Court is directed to close this case. 15 16 TT IS SO ORDERED. 17 . Dated: _ April 5, 2024 18 TED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 6 ' “When (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the 27 dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017); see also O'Neal v. Price, 531 F.3d 1146, 1156 (9th Cir. 2008) (dismissal for failure to state a claim and 28 || another ground counts as a strike when it is clear from the court’s reasoning that it considers failure to state a claim to be a fully sufficient condition to dismiss the action).