Smith v. United States
Filing
6
FINDINGS and RECOMMENDATIONS, recommending that plaintiff's 5 First Amended Complaint be dismissed without leave to amend and Clerk be directed to close this case, signed by Magistrate Judge Edmund F. Brennan on 7/27/2011. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
WILLIAM DALE SMITH, JR.,
Plaintiff,
11
vs.
12
13
No. CIV 11-1577 KJM EFB PS
UNITED STATES OF AMERICA,
Defendant.
14
FINDINGS AND RECOMMENDATIONS
/
15
16
This case, in which plaintiff is proceeding in propria persona, was referred to the
17
undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On July 6, 2011,
18
the undersigned granted plaintiff’s request to proceed in forma pauperis, but dismissed
19
plaintiff’s complaint with leave to amend pursuant to 28 U.S.C. § 1915(e)(2). Dckt. No. 4. The
20
court noted that plaintiff’s original complaint was “nearly incomprehensible,” and that neither
21
plaintiff’s original complaint nor his supplement thereto alleged any cognizable legal theories or
22
any facts in support of a cognizable legal theory. Id. at 3. Accordingly, the court dismissed
23
plaintiff’s complaint, but provided plaintiff with an opportunity to amend his complaint to the
24
extent that he could “allege a cognizable legal theory and sufficient facts in support of that
25
cognizable legal theory.” Id.
26
////
1
1
On July 8, 2011, plaintiff filed an amended complaint. Dckt. No. 5. However, his
2
amended complaint once again fails to allege any cognizable legal theories or any facts in
3
support of a cognizable legal theory. It appears that the gist of plaintiff’s complaint is his claim
4
under 18 U.S.C. § 1512 for witness tampering. However, as the court noted in the July 6 order,
5
“18 U.S.C. § 1512 is a criminal statute that does not provide a private civil right of action.”
6
Dckt. No. 4 at 3.
7
As previously explained to plaintiff, although pro se pleadings are liberally construed,
8
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be
9
dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief
10
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)
11
(citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s
12
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
13
conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual
14
allegations must be enough to raise a right to relief above the speculative level on the assumption
15
that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate
16
based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to
17
support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th
18
Cir. 1990).
19
Because it appears that further amendment would be futile, the court will recommend that
20
this action be dismissed without leave to amend pursuant to 28 U.S.C. § 1915(e)(2). Noll v.
21
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would permit a pro se
22
plaintiff to amend, leave to amend should not be granted where it appears amendment would be
23
futile).
24
Accordingly, IT IS HEREBY RECOMMENDED that:
25
1. Plaintiff’s amended complaint, Dckt. No. 5, be dismissed without leave to amend; and
26
////
2
1
2. The Clerk be directed to close this case.
2
These findings and recommendations are submitted to the United States District Judge
3
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
4
after being served with these findings and recommendations, any party may file written
5
objections with the court and serve a copy on all parties. Such a document should be captioned
6
“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
7
within the specified time may waive the right to appeal the District Court’s order. Turner v.
8
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
9
DATED: July 27, 2011.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?