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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH ANDERSON FOX, 12 Plaintiff, 13 14 15 16 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. 17 18 Plaintiff Keith Fox, proceeding pro se and in forma pauperis filed a complaint in this 19 action on February 18, 2016. (Doc. No. 1.) The matter was referred to the assigned magistrate 20 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 25, 2016, the 21 assigned magistrate judge issued findings and recommendations recommending that plaintiff’s 22 complaint be dismissed with leave to amend for failure to comply with Federal Rule of Civil 23 Procedure 8 and failure to state a cognizable claim. (Doc. No. 4.) 24 These findings and recommendations were served on all parties appearing in this action 25 and included notice that any objections thereto were to be filed within fourteen (14) court days of 26 the date of service. (Id. at 5.) On September 9, 2016, plaintiff filed objections to the findings and 27 recommendations in which alleges additional facts, but does not address the extremely limited 28 and cursory nature of the allegations set forth in his original complaint. (Doc. No. 5.) With his 1 1 objections plaintiff has also submitted exhibits including the agency decision rejecting his claims 2 of discrimination. (Id.) 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 5 objections, the court finds that the findings and recommendations are supported by the record and 6 proper analysis. Plaintiff’s original complaint fails to contain sufficient factual allegations in 7 support of his claims. Based on his objections, it appears possible that plaintiff may be able to 8 allege sufficient facts to state cognizable claims based on wrongful termination and workplace 9 discrimination arising from his employment with the Defense Logistics Agency. As such, and as 10 recommended by the assigned magistrate judge, plaintiff will be granted leave to file an amended 11 complaint and to allege additional facts and details in support of his claim. 12 Plaintiff is advised that the court cannot refer to a prior pleading in order to make 13 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 14 complete in itself without reference to any prior pleading. This is because, as a general rule, an 15 amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th 16 Cir. 1967). Once an amended complaint is filed, the original pleading no longer serves any 17 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 18 and the involvement of each defendant must be sufficiently alleged. 19 20 21 22 23 24 25 26 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 27 28 2

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