Hubbard v. Winfrey

Filing 11

ORDER signed by Senior Judge Lawrence K. Karlton on 2/10/09 ORDERING that subject to the clarification noted above, 10 the findings and recommendations filed October 23, 2008, are adopted in full. This action is DISMISSED. CASE CLOSED. (Duong, D)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. OPRAH WINFREY, Defendant. / Plaintiff, proceeding pro se, filed the above-entitled actions. The matter was referred to a United States Magistrate Judge pursuant to Local Rule 72-302(c)(21). On October 23, 2008, the magistrate judge filed findings and recommendations herein which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has not filed objections to the findings and recommendations. The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis, subject to one exception. The magistrate cites Hinshon v. King & Spalding, 467 U.S. 69, 73 (1984) and Conley v. Gibson, 355 U.S. 41, 45-46 (1957) for the statement that a complaint should only be dismissed for failure to state a claim upon which relief may be granted "if it appears byeond doubt that plaintiff can 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MYRNA HUBBARD, Plaintiff, No. CIV S-07-2586 LKK KJM PS

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prove no set of facts in support of the claim or claims that would entitle him to relief." Magistrate's Findings and Recommendations of October 23, 2008 at 2. The Supreme Court repudiated this standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). However, the Twombly standard raises the bar for plaintiffs, and this court agrees that plaintiff failed to clear even the lower, "no set of facts" bar.. Accordingly, IT IS HEREBY ORDERED that: 1. Subject to the clarification noted above, the findings and recommendations filed October 23, 2008, are adopted in full; and 2. This action is dismissed. DATED:
February 10, 2009.

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