(PC)Facchin v. Kelley ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KYLE THOMAS FACCHIN, Case No. 1:21-cv-00289-ADA-CDB (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 12 v. COMPLAINT FOR FAILURE TO STATE A CLAIM 13 SEAN KELLY, et al., (ECF No. 14) 14 Defendants. 15 Clerk of Court to close the case. 16 17 Plaintiff Kyle Thomas Facchin (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action misfiled under Bivens v. Six Unknown Federal Narcotics 19 Agents, 403 U.S. 388 (1971). This matter was referred to a United States Magistrate Judge pursuant 20 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On December 7, 2022, the assigned Magistrate Judge screened Plaintiff’s complaint that 22 alleges that Defendant Sean Kelley subjected him to excessive force and unknown officers failed 23 to protect him, in violation of his Eighth Amendment right to be free from cruel and unusual 24 punishment. (ECF No. 14.) The Magistrate Judge found that the complaint fails to state a claim 25 upon which relief may be granted and must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)- 26 (ii) and 28 U.S.C. § 1915A(b)(1). (See id. at 11.) He further found that the deficiencies in the 27 complaint cannot be cured by amendment and therefore recommended dismissal of this action 28 without leave to amend. 1 The assigned Magistrate Judge advised that Plaintiff could file written objections to the 2 | findings and recommendations within fourteen days. Ud.) Plaintiff did not file objections, and the 3 | time to do so has passed. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 5 | de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings 6 | and recommendations to be supported by the record and proper analysis. 7 Accordingly, 8 1. The findings and recommendations issued on December 7, 2022, (ECF No. 14), are 9 adopted in full; 10 2. This action is DISMISSED for failure to state a claim upon which relief can be 11 granted; and 12 3. The Clerk of Court is directed to terminate all pending motions and to close this 13 case. 14 15 16 | IT IS SO ORDERED. 17 Dated: _ March 27, 2023 is UNITED fTATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28