Fox v. Carter

Filing 12

ORDER VACATING Findings and Recommendation to Dismiss Action for Failure to State a Claim 10 ; ORDER GRANTING Plaintiff Leave to File a Second Amended Complaint, signed by Magistrate Judge Michael J. Seng on 11/15/17. (30-Day Deadline)(Martin-Gill, S)

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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,

CASE NO. 1:16-cv-00223-DAD-MJS
ORDER VACATING FINDINGS AND
RECOMMENDATION TO DISMISS
ACTION FOR FAILURE TO STATE A
CLAIM (ECF No. 10)

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ORDER GRANTING PLAINTIFF LEAVE
TO FILE A SECOND AMENDED
COMPLAINT

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THIRTY (30) DAY DEADLINE

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Defendant.

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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 provided detailed legal standards applicable to his claims and was

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again given leave to amend. On August 25, 2017, Plaintiff filed a letter stating, in its

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entirety, as follows: “I Keith Fox would like to continue with case base on a ruling that for

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me that I was [illegible] for desiability on Jun 2014 and [illegible] and on the EEO report”

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(ECF No. 9.) Because the letter failed to address applicable pleading standards, the

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undersigned issued findings and recommendations to dismiss the action without further

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leave to amend. (ECF No. 10.) Plaintiff filed objections. (ECF No. 11.)

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In his objections, Plaintiff states that there was an “agreement” at an EEO hearing

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that he was discriminated against based on disability, and that he was awarded “back

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pay work” and an opportunity for retraining and reinstatement. (ECF No. 11.) While these

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allegations are insufficient, standing alone, to state a cognizable claim, they do suggest

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that Plaintiff may be able to state a cognizable claim if provided leave to amend.

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Accordingly, the Court will vacate its prior findings and recommendation.

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Plaintiff will be given one final opportunity to amend his complaint to state a

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cognizable claim to include providing a summary of the facts which give rise to his

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intended discrimination claim(s). He is not required to cite to legal authority or even

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include legal analysis. However, he must state sufficient facts for the Court to determine

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whether he states a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78

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(2009). Plaintiff should therefore focus his efforts on explaining what action was taken

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against him, by whom, and why he believes it was discriminatory. Absent such facts, the

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Court will again recommend that the action be dismissed without further leave to amend.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. In other words, the Court will not look to Plaintiff’s

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prior pleadings to determine whether he states a cognizable claim.

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The amended complaint must be filed within thirty days, be clearly and boldly

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titled “Second Amended Complaint,” refer to the appropriate case number, and be an

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original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. The findings and recommendation filed September 6, 2017 are vacated;

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2. Plaintiff is granted leave to file a second amended complaint within thirty

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days of the date of this order; and

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3. If Plaintiff fails to comply with this order, the undersigned will recommend

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dismissal of the action.

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IT IS SO ORDERED.
Dated:

November 15, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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