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Vernon D. Carroll v. Ken Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 14, 2011

VERNON D. CARROLL,
PLAINTIFF,
v.
KEN CLARK, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT (Docs. 18, 20, and 23)

ORDER COUNTING DISMISSAL AS A STRIKE UNDER 28 U.S.C. § 1915(G)

Plaintiff Vernon D. Carroll, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 28, 2009. 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 February 25, 2011, a Findings and Recommendations was filed in which the Magistrate Judge screened Plaintiff's amended complaint and recommended dismissal of this action for failure to state a claim under section 1983. 28 U.S.C. § 1915A. After receiving an extension of time, Plaintiff filed a timely Objection on April 11, 2011.*fn1

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 has not stated any claims for violation of the Eighth Amendment and this action shall be dismissed. In his objections, Plaintiff references contributory and comparative negligence. (Doc. 28, p. 2.) The Court expresses no opinion whether Plaintiff may be able to state any claims under California tort law, as absent a viable federal claim, the Court will not exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001).

Accordingly, IT IS HEREBY ORDERED that:

1. The Court adopts the Findings and Recommendations filed on February 25, 2011, in full;

2. This action is dismissed, with prejudice, for failure to state a claim under section 1983;

3. The Clerk of the Court shall enter judgment against Plaintiff; and

4. This dismissal counts as a strike under 28 U.S.C. § 1915(g).

IT IS SO ORDERED.

emm0d6


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