(PC) Montenegro v. Anthony ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN M. MONTENEGRO, Case No. 1:21-cv-1449 JLT HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING 13 v. THE ACTION 14 ANTHONY, GRISHAM, (Doc. 22) 15 Defendants. 16 17 Juan M. Montenegro is a state prisoner proceeding pro se and in forma pauperis in this 18 action, in which he seeks to hold the defendants liable for violating his rights under the Eighth 19 Amendment. (See Doc. 19.) The matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 The magistrate judge found Plaintiff failed to state a cognizable claim in his Second 22 Amended Complaint. (Doc. 22 at 3-6.) The magistrate judge observed that Plaintiff had 23 previously been granted two opportunities to cure the pleading deficiencies, and found further 24 leave to amend would be futile. (Id. at 6, citing McKinney v. Baca, 250 F. App’x 781 (9th Cir. 25 2007).) Therefore, the magistrate judge recommended the action be dismissed with prejudice for 26 failure to state a claim. (Id. at 7.) 27 The Court served the findings and recommendations on Plaintiff, and it notified him that 28 objections were to be filed within 14 days. (Doc. 22 at 7.) In addition, the Court advised Plaintiff 1 | that “failure to file objections within the specified time may result in the waiver of rights on 2 | appeal.” (/d., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014), Baxter v. 3 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Plaintiff did not file any objections, and the time 4 | to do so has expired. 5 According to 28 U.S.C. § 636(b)(1)(C), the Court conducted a de novo review of this case. 6 | Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to 7 | be supported by the record and by proper analysis. Despite being given opportunities to cure the 8 | deficiencies identified by the magistrate judge, Plaintiff failed to state a cognizable claim for 9 | deliberate indifference of his serious medical needs in violation of the Eighth Amendment. Thus, 10 | the Court agrees further leave to amend is futile. See, e,g., Zucco Partners, LLC vy. Digimarc 11 | Corp., 552 F.3d 981, 1008 (9th Cir. 2009) (“repeated failure to cure deficiencies” constitutes “a 12 | strong indication that the [plaintiff] has no additional facts to plead” and “that any attempt to 13 | amend would be futile”). Thus, the Court ORDERS: 14 1. The Findings and Recommendations filed on May 11, 2023 (Doc. 22) are 15 ADOPTED IN FULL. 16 2. The action is DISMISSED with prejudice. 17 3. The Clerk of Court shall terminate any pending motions, close this case, and enter 18 judgment against plaintiff. 19 20 IT IS SO ORDERED. 21 | Dated: _June 19, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 22 23 24 25 26 27 28