Fox v. Carter

Filing 10

FINDINGS and RECOMMENDATIONS recommending that the Action be DISMISSED Becaue Plaintiff Has Failed to Plead in Compliance with Rule 8 and Has Failed to State a Cognizable Claim re 7 Amended Complaint signed by Magistrate Judge Michael J. Seng on 9/5/2017. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH ANDERSON FOX,

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Plaintiff,
v.
HONORABLE ASHTON B. CARTER,
Defendant.

CASE NO. 1:16-cv-00223-DAD-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
STATE A CLAIM
FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

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Plaintiff Keith Anderson Fox initiated this action on February 18, 2016. (ECF No.

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1.) On August 25, 2016, his complaint was dismissed for failure to comply with Federal

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Rule of Civil Procedure 8 and failure to state a claim. (ECF No. 6.) On February 16,

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2017, he filed his first amended complaint. (ECF No. 7.) On July 14, 2017, his first

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amended complaint was dismissed on the same grounds as the original complaint. (ECF

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No. 8.) Plaintiff was again given leave to amend. On August 25, 2017, Plaintiff filed a

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letter stating, in its entirety, as follows: “I Keith Fox would like to continue with case base

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on a ruling that for me that I was [illegible] for desiability on Jun 2014 and [illegible] and

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on the EEO report” (ECF No. 9.) To the extent this letter is intended as Plaintiff’s

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amended pleading, it is insufficient to state a cognizable claim.

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Plaintiff twice has been advised of the legal standards applicable to his claims and

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the defects in his pleading. He has failed to file a complaint that meets applicable

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pleading standards. In light of the foregoing, further leave to amend appears futile and

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should be denied. See Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d

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1276, 1293 (9th Cir. 1983); Lockman Found. v. Evangelical Alliance Mission, 930 F.2d

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764, 772 (9th Cir. 1991).

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Accordingly, it is HEREBY RECOMMENDED that the action be dismissed

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because Plaintiff has failed to plead in compliance with Rule 8 and has failed to state a

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cognizable claim.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 5, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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