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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KEITH ANDERSON FOX, 11 12 13 14 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 15 16 17 18 19 Plaintiff Keith Anderson Fox initiated this action on February 18, 2016. (ECF No. 20 1.) On August 25, 2016, his complaint was dismissed for failure to comply with Federal 21 Rule of Civil Procedure 8 and failure to state a claim. (ECF No. 6.) On February 16, 22 2017, he filed his first amended complaint. (ECF No. 7.) On July 14, 2017, his first 23 amended complaint was dismissed on the same grounds as the original complaint. (ECF 24 No. 8.) Plaintiff was again given leave to amend. On August 25, 2017, Plaintiff filed a 25 letter stating, in its entirety, as follows: “I Keith Fox would like to continue with case base 26 on a ruling that for me that I was [illegible] for desiability on Jun 2014 and [illegible] and 27 28 1 on the EEO report” (ECF No. 9.) To the extent this letter is intended as Plaintiff’s 2 amended pleading, it is insufficient to state a cognizable claim. 3 Plaintiff twice has been advised of the legal standards applicable to his claims and 4 the defects in his pleading. He has failed to file a complaint that meets applicable 5 pleading standards. In light of the foregoing, further leave to amend appears futile and 6 should be denied. See Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 7 1276, 1293 (9th Cir. 1983); Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 8 764, 772 (9th Cir. 1991). 9 Accordingly, it is HEREBY RECOMMENDED that the action be dismissed 10 because Plaintiff has failed to plead in compliance with Rule 8 and has failed to state a 11 cognizable claim. 12 The findings and recommendation will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 14 Within fourteen (14) days after being served with the findings and recommendation, the 15 parties may file written objections with the Court. The document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond 17 to another party’s objections by filing a response within fourteen (14) days after being 18 served with a copy of that party’s objections. The parties are advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. 20 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 21 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 IT IS SO ORDERED. Dated: September 5, 2017 /s/ 25 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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