(PC) Hammler v. Oliveira

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA ALLEN HAMMLER, No. 1:19-cv-00417-NONE-JLT (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS AND DISMISSING ACTION M. OLIVEIRA, et al., (Doc. No. 21) 15 Defendant.

17 Plaintiff Allen Hammler is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On February 7, 2020, the assigned magistrate judge issued a screening order, finding that plaintiff’s first amended complaint (Doc. No. 11) failed to state a claim on which relief can be granted. (Doc. No. 12.) The order provided plaintiff 21 days to file a second amended complaint curing the deficiencies identified therein, and warned plaintiff that failure to comply with the order would result in a recommendation “that this action be dismissed for failure to state a claim and failure to obey a court order.” (Id. at 5-6.) Plaintiff then challenged the screening order by appeal to the Ninth Circuit Court of Appeals. (See Doc. No. 13.) The Ninth Circuit dismissed plaintiff’s appeal because the screening order was not a final or appealable order. (Doc. No. 16.) /// 1 On March 31, 2020, the assigned magistrate judge granted plaintiff another opportunity to file a second amended complaint curing the deficiencies identified in the screening order. (Doc.

3 No. 17.) Plaintiff was again cautioned that failure to comply with the order would result in a recommendation that this action be dismissed for failure to state a claim and to obey a court order. (Id. at 2.) On April 23, 2020, plaintiff filed a “notice that he will not be submitting a second amended complaint and asserts … that the 1st amended complaint is colorable.” (Doc.

7 No. 19.) Accordingly, on April 24, 2020, the magistrate judge issued findings and recommendations, recommending that this action be dismissed for failure to state a claim and to obey a court order. (Doc. No. 21.) The findings and recommendations provided plaintiff 14 days to file objections thereto. (Id. at 2.)

11 Plaintiff filed timely objections to the findings and recommendations on May 13, 2020.

12 (Doc. No. 22.) In his objections, plaintiff states that “he does not state he will not comply, but … he will not be submitting amendment as he can add nothing new and relies on the first amended pleading asserting it to be colorable.” (Id. at 1.)

15 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, including plaintiff’s objections, the court finds the findings and recommendations to be supported by the record and proper analysis. Dismissal is proper because plaintiff refuses to comply with court orders to file an amended complaint addressing the deficiencies in his pleading. See Ferdik v. Bonzelet, 963 20 F.2d 1258, 1260-63 (9th Cir. 1992) (affirming dismissal for plaintiff’s failure to comply with orders to amend complaint). Dismissal is also proper because, as the magistrate judge correctly found, plaintiff did not allege sufficient facts in his first amended complaint that, if proven, would show that defendant took any adverse action against him, or that defendant’s conduct would chill a person of “ordinary firmness” from engaging in protected First Amendment activities, which are both required to state a cognizable retaliation claim. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).

27 ///// wOAOe 4S VOTE OMAR VR oO POC Te OY VV VI 1 Accordingly, 2 1. The findings and recommendations issued on April 24, 2020 (Doc. No. 21) are 3 adopted in full; 4 2. This action is dismissed for plaintiff's failure to obey court orders and failure to 5 state a claim on which relief can be granted; 6 3. The Clerk of the Court is directed to assign a district judge to this action for 7 purposes of closure and then to close this case.

8 | IT IS SOORDERED. a 9 Li. wh F Dated: _ June 4, 2020 wee TE OO 10 UNITED STATES DISTRICT JUDGE