UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 4, 2008
WILLIAM MEADOR, PLAINTIFF,
CORCORAN STATE PRISON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING PLAINTIFF'S AMENDED COMPLAINT, WITHOUT LEAVE TO AMEND, THUS CONCLUDING THIS ACTION IN ITS ENTIRETY
THIS DISMISSAL SHALL COUNT AS A STRIKE PURSUANT TO 28 U.S.C. 1915 (g)
Plaintiff William Meador ("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 72-302.
On June 27, 2008, the Magistrate Judge filed a Findings and Recommendations herein which was served on plaintiff and which contained notice to Plaintiff that any objection to the Findings and Recommendations was to be filed within twenty days. Plaintiff filed an Objection to the Findings and Recommendations on July 17, 2008.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c), this 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. In this action, Plaintiff contends that he was not released from the Security Housing Unit (SHU) when his SHU term ended. The Court agrees with the Magistrate Judge that Plaintiff's Fourteenth Amendment claim fails because the threshold requirement to Plaintiff's Fourteenth Amendment procedural due process claim is Plaintiff's showing of a liberty interest protected by the Constitution. See Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999); Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). As explained by the Magistrate Judge, a prisoner has a liberty interest in freedom from restraint that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandinv. Conner, 515 U.S. 472, 484 (1995); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). Plaintiff has failed to allege how conditions in the SHU were atypical and significant. Thus, the objections provide no basis not to adopt the Findings and Recommendations.
The court hereby informs Plaintiff that Title 28 U.S.C. § 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." Because this action is being dismissed for failure to state a claim, it will count as a strike pursuant to 28 U.S.C. § 1915 (g).
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed June 27, 2008, is adopted in full;
2. Plaintiff's amended complaint is DISMISSED without leave to amend for failure to state any cognizable claims for relief;
3. The Clerk of the Court is DIRECTED to close this action because it has been concluding in its entirety; and
4. This action shall count as a strike pursuant to 28 U.S.C. § 1915 (g).
IT IS SO ORDERED.
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