Espino v. Wallgreens Pharmacy
Filing
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ORDER granting 16 Motion to Dismiss and adopting 22 FINDINGS AND RECOMMENDATIONS signed by Chief Judge Morrison C. England, Jr on 11/10/15: Plaintiff's First Amended Complaint 15 is DISMISSED without prejudice. Plaintiff is granted twenty (20) days from the date that this order is electronically filed to file a Second Amended Complaint. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CARLOS ESPINO,
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No. 2:15-cv-00423-MCE-AC (PS)
Plaintiff,
v.
ORDER
WALGREEN CO.,
Defendant.
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Plaintiff is proceeding in this action in pro per. The matter was referred to a United States
Magistrate Judge pursuant to Local Rule 302(c)(21).
On September 21, 2015, the magistrate judge filed Findings and Recommendations herein
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(ECF No. 22) which were served on all parties and which contained notice that any objections to
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the Findings and Recommendations were to be filed within fourteen days. Plaintiff timely filed
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objections to the Findings and Recommendations (ECF No. 23), and Defendant filed a reply to
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Plaintiff’s objections (ECF No. 24).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the
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Court has conducted a de novo review of this case. Having carefully reviewed the entire file,
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including Plaintiff’s objections to the Findings and Recommendations, the Court finds the
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Findings and Recommendations to be supported by the record and by proper analysis. The Court
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will therefore adopt the Findings and Recommendations with a single modification: the dismissal
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of Plaintiff’s first amended complaint is without prejudice. Contrary to the Findings and
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Recommendations, the Court finds that the First Amended Complaint could be saved by further
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amendment.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The Findings and Recommendations filed September 21, 2015 (ECF No. 22) are
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ADOPTED AS MODIFIED;
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2. Defendant’s Motion to Dismiss (ECF No. 16) is GRANTED; and
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3. Plaintiff’s First Amended Complaint (ECF No. 15) is DISMISSED without prejudice.
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Plaintiff is granted twenty (20) days from the date that this order is electronically filed to file a
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Second Amended Complaint that cures the deficiencies identified in the Findings and
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Recommendations. Failure to timely file a Second Amended Complaint in compliance with this
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Order will result in this action being dismissed for failure to state a claim.
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IT IS SO ORDERED.
Dated: November 10, 2015
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