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Robert Cortez v. Department of Corrections

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 21, 2012

ROBERT CORTEZ,
PLAINTIFF,
v.
DEPARTMENT OF CORRECTIONS, ET AL.,
DEFENDANTS.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT (Docs. 1 and 10) ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G)

Plaintiff Robert Cortez, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 23, 2011. 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 April 13, 2012, the Magistrate Judge issued Findings and Recommendations recommending dismissal of this action, with prejudice, as barred by the statute of limitations. 28 U.S.C. § 1915A; see Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (screening standard for failure to state a claim the same as the Fed. R. Civ. P. 12(b)(6) standard); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (claim may be dismissed under Fed. R. Civ. P. 12(b)(6) as barred by the statute of limitation when the running of the statute is apparent on the face of the complaint). Plaintiff was given ten days within which to object, but he neither filed an Objection nor responded to the previously issued Order to Show Cause.*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.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed on April 13, 2012, are adopted in full;

2. This action is barred by the statute of limitation and is therefore dismissed, with prejudice, for failure to state a claim upon which relief may be granted;

3. This dismissal is subject to the "three-strikes" provision set forth in 28 U.S.C. § 1915(g); and

4. The Clerk of the Court shall enter judgment.

IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE


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