UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 14, 2012
F. GONZALES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (DOC. 36)
Plaintiff Gemmel Dixon ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On September 7, 2011, Plaintiff filed a Fourth Amended Complaint. Doc. 35. 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 November 14, 2011, the Magistrate Judge filed a Findings and Recommendations 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-one days. Plaintiff did not file an objection, but instead filed a proposed Fifth Amended Complaint. Doc. 39.
In accordance with the provisions of 28 U.S.C. § 636(b)(1), 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. The Court does not grant Plaintiff leave to file a Fifth Amended Complaint. Plaintiff's Fifth Amended Complaint presents the same allegations raised in the Fourth Amended Complaint, which fails to state a claim.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed November 14, 2011, is adopted in full;
2. This action is dismissed with prejudice for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983; and
3. This dismissal is subject to the "three strikes" provision of 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).
IT IS SO ORDERED.
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