Lewis v. NBC Universal et al

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/25/17 recommending that The First Amended Complaint be dismissed with prejudice. F&R referred to District Judge Garland E. Burrell, Jr. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK JEROME LEWIS,

No. 2:16-cv-3029 GEB GGH

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Plaintiff,

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FINDINGS AND RECOMMENDATIONS
v.

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NBC UNIVERSAL, GENERAL
ELECTRIC, et al.,

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Defendants.

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PROCEDURAL BACKGROUND

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Plaintiff is proceeding in this action pro se. This proceeding was referred to the

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undersigned under Local Rule 302(c)(21).
On January 12, 2017, this court issued an Order which granted plaintiff IFP status, and

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dismissed his complaint which sought relief for federal due process violations under 42 U.S.C. §

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1983, with directions to file an amended complaint within 30 days. Within that Order the court

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explained the requirements for a proper complaint in detail including the necessity to identify

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individual state actors who had acted against him, to state facts demonstrating the actions of

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which he complained, laid out the elements that must be plead and proved in a § 1983 actions,

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and specific bases for alleging federal jurisdiction as to each defendant, and the factual allegations

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required to sustain fraud claims. On January 19, 2017 plaintiff filed his First Amended

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Complaint.

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DISCUSSION

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In his original complaint Plaintiff named General Electric, NBC Universal and

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Sacramento County Superior Court in the caption section, but appended a list of forty (40)

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additional defendants plus Does 1 through 20. In his Amended Complaint he identifies General

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Electric, NBC Universal and Iheart Educational Broadcasting in the caption section and appends

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a list of 53 additional defendants plus Does 1 through 20. In its January 12, 2017, Order, ECF

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No. 4, this Court advised the plaintiff of the following deficiencies in the Complaint:

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1.

As written the Complaint does not provide information to establish who the

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defendant is or the defendants are and specifically what is alleged against each of them; ECF No.

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at 3: 5-7;

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2.

The Complaint alleges both diversity and federal question jurisdiction and explains

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how jurisdiction must be pleaded in order to allow the court to determine if it indeed has

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jurisdiction over some or all of the defendants on one theory or another; id. at 3:8-14.

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3.

In addition the Complaint generally asserts due process as the source of his action

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but he has named many private parties. As a result the court explained what is required to allege

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a proper due process claim, id. at 3:14-4:8;

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4.

The Complaint failed to meet the requirements of Federal Rule of Civil Procedure

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5.

As it appeared that the plaintiff was perhaps asserting fraud, the court went on to

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explain the pleading requirements for fraud found in Federal Rule of Civil Procedure 9. Id. at

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5:3-8.

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6.

Finally, because the Complaint alleged a claim against the Sacramento Superior

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Court, this court also explained that this alleged defendant was immune from action in a federal

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court thus rendering its inclusion a “frivolous act. Id. at 3 n. 1. 1

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This is the one element that plaintiff appears to have corrected in his Amended Complaint as
the Superior Court is not named as a defendant.
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The First Amended Complaint suffers from the very same deficiencies as did the original

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complaint. The court cannot identify any individual state actors as to any of the myriad claims

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made, cannot determine with any precision the actions of which plaintiff complains either in

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terms of what actions were taken and when they were taken. A major proportion of the First

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Amended Complaint contains the same language as is found in the original Complaint with no

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greater specificity than that which led to the court’s dismissal of the original Complaint.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-521 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988), when it

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becomes clear that plaintiff is unable to present a pleading that conforms to the Rules of Federal

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Procedure thus failing to provide the court with a cognizable document to address, it becomes

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clear that no further opportunity to amend is likely to cure the defects of a complaint, a pro se

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plaintiff proceeding in forma dismissal without leave to amend is a proper course. See Moore v.

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U.S.. 103 F.R.D. 647, 652-653 (N.D.Cal. 2000).

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In essence the plaintiff’s Complaint, and now his Amended Complaint both fail to state a

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cognizable claims, are in most part indecipherable, and clearly cannot be cured by another

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opportunity to plead. Thus the court finds that it would be fruitless to engage in yet another

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attempted amendment and therefore recommends dismissal with prejudice.

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In light of the foregoing, IT IS RECOMMENDED that:

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1.

The First Amended Complaint be dismissed, with prejudice; and

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2.

No further amendment will be accepted for filing on the docket of this matter until

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the District Court has ruled.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, any party may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge's Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate's factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated: January 25, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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