Smith v. California Correctional Health Care Services et al

Filing 16

ORDER signed by District Judge Troy L. Nunley on 3/31/2017 ADOPTING 11 Findings and Recommendations in so far as they dismiss the case. Plaintiff's complaint is DISMISSED, with leave to amend, for failure to state a claim. Plaintiff's motions are DISREGARDED and DENIED as moot. Plaintiff shall file an amended complaint within 30 days of this order. (Donati, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TOM SMITH, 12 Plaintiff, 13 14 15 No. 2:16-cv-1038-TLN-CMK-P v. ORDER CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. 18 § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District 19 of California local rules. On February 10, 2017, the Magistrate Judge filed findings and recommendations herein 20 21 which were served on the parties and which contained notice that the parties may file objections 22 within a specified time. Timely objections to the findings and recommendations have been filed. The Magistrate Judge recommends dismissing the case without leave to amend. However, 23 24 a court should grant leave to amend “if it appears at all possible that the plaintiff can correct the 25 defect” by alleging other facts. Lopez v. Smith, 203 F.3d at 1130–31 (finding a pleading could be 26 cured by naming the correct defendants). This Court is not convinced that it is impossible for 27 Plaintiff to cure the deficiencies in his Complaint by alleging additional facts. 28 /// 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 2 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 Court finds the findings and recommendations to be supported by the record and by proper 4 analysis. 5 6 Accordingly, IT IS HEREBY ORDERED that: 1. 7 8 in so far as they dismiss the case; 2. 9 10 13 Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim; 3. 11 12 The findings and recommendations filed February 10, 2017, are adopted in Plaintiff’s motions for summary judgment (Docs. 6,7) and for filing of evidence (Doc. 9) are disregarded and denied as moot; and 4. Plaintiff shall file on the docket a First Amended Complaint within thirty (30) days of this Order. 14 15 Dated: March 31, 2017 16 17 Troy L. Nunley United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2

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