Fox v. Carter

Filing 6

ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS IN FULL and ORDER GRANTING Plaintiff Leave to File an Amended Complaint Within Thirty (30) Days signed by District Judge Dale A. Drozd on 1/20/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH ANDERSON FOX,

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Plaintiff,

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v.
HONORABLE ASHTON B. CARTER,
Secretary of Defense,

No. 1:16-cv-00223-DAD-MJS

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS
COMPLAINT WITHOUT PREJUDICE
(Doc. No. 4)

Defendants.

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Plaintiff Keith Fox, proceeding pro se and in forma pauperis filed a complaint in this

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action on February 18, 2016. (Doc. No. 1.) The matter was referred to the assigned magistrate

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judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 25, 2016, the

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assigned magistrate judge issued findings and recommendations recommending that plaintiff’s

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complaint be dismissed with leave to amend for failure to comply with Federal Rule of Civil

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Procedure 8 and failure to state a cognizable claim. (Doc. No. 4.)

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These findings and recommendations were served on all parties appearing in this action

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and included notice that any objections thereto were to be filed within fourteen (14) court days of

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the date of service. (Id. at 5.) On September 9, 2016, plaintiff filed objections to the findings and

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recommendations in which alleges additional facts, but does not address the extremely limited

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and cursory nature of the allegations set forth in his original complaint. (Doc. No. 5.) With his
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objections plaintiff has also submitted exhibits including the agency decision rejecting his claims

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of discrimination. (Id.)

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s

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objections, the court finds that the findings and recommendations are supported by the record and

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proper analysis. Plaintiff’s original complaint fails to contain sufficient factual allegations in

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support of his claims. Based on his objections, it appears possible that plaintiff may be able to

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allege sufficient facts to state cognizable claims based on wrongful termination and workplace

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discrimination arising from his employment with the Defense Logistics Agency. As such, and as

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recommended by the assigned magistrate judge, plaintiff will be granted leave to file an amended

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complaint and to allege additional facts and details in support of his claim.

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Plaintiff is advised that the court cannot refer to a prior pleading in order to make

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plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once an amended complaint is filed, the original pleading no longer serves any

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function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

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and the involvement of each defendant must be sufficiently alleged.

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Accordingly:
1. The findings and recommendations (Doc. No. 4) issued August 25, 2016, are adopted in
full;
2. Plaintiff is granted leave to file an amended complaint within thirty (30) days of the
service of this order; and
3. Failure by plaintiff to comply with this order will result of the dismissal of this action.
IT IS SO ORDERED.
Dated:

January 20, 2017
UNITED STATES DISTRICT JUDGE

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