Allan H. F. Palmer v. Charles H. Palmer et al

Filing 11

ORDER ACCEPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge Josephine L. Staton 9 . (twdb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALLAN H. F. PALMER, 11 12 13 Plaintiff, v. Case No. CV 16-05247-JLS (DFM) Order Accepting in Part Report and Recommendation of United States Magistrate Judge CHARLES H. PALMER, et al., 14 15 Defendants. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 19 Complaint (“FAC”), the records on file, and the Report and Recommendation of the 20 assigned United States Magistrate Judge. Further, the Court has engaged in a de novo 21 review of those portions of the Report and Recommendation to which objections have 22 been made. The Court accepts the findings and recommendation of the Magistrate 23 judge, except the Magistrate Judge’s determination that the First Amended Complaint 24 should be dismissed without leave to amend. 25 The Report and Recommendation directed Plaintiff to advise the Court if he 26 believed he could amend the FAC to make allegations to cure the deficiencies outlined 27 in the Report and Recommendation. (Doc. 9 at 9 n.4 (“If Plaintiff believes he can 28 amend the FAC to make allegations sufficient to state a [claim], he should say so in 1 his objection to this Report and Recommendation.”).) Notably, the Report and 2 Recommendation does not require that Plaintiff outline what those allegations would 3 be. In response, in his Objection to the Report and Recommendation, Plaintiff 4 indicated he believes he can make allegations sufficient to state a claim if he is given 5 the opportunity to amend the FAC. (Doc. 10 at 9-10.) Although Plaintiff does not 6 state with specificity what allegations he would make, he was directed only to state if 7 he believed he could amend to cure the identified deficiencies. 8 9 Therefore, the Court dismisses the present action without prejudice and with leave to amend. Plaintiff shall file his Second Amended Complaint no later than thirty 10 (30) days of the entry of this Order. Failure to do so will result in dismissal of the 11 present action with prejudice. 12 IT IS SO ORDERED. 13 DATED: July 26, 2017 14 15 16 _________________________________ The Hon. Josephine L. Staton United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 2

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