Iredia-Ortega v. Baker Residential Academic Program University of Cal et al
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 05/31/17 ORDERING that 8 plaintiff's Motion to Amend Judgment is DENIED as moot; and RECOMMENDING that this action be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to these F&Rs due within 14 days. (Benson, A)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:17-cv-00843 MCE CKD PS
BAKER RESIDENTIAL ACADEMIC
PROGRAM UNIVERSITY OF CAL, et
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed a
document that appears to seek amendment of a judgment. (ECF No. 8.) No judgment has yet
been entered in this matter. Plaintiff’s motion will therefore be denied as moot. To the extent
plaintiff seeks habeas relief, plaintiff must file a separate habeas action.
Plaintiff has also filed a second amended complaint. (ECF No. 10.) The federal in forma
pauperis statute authorizes federal courts to dismiss a case if the action is legally “frivolous or
malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from
a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
490 U.S. at 327.
Plaintiff was previously advised of the standards for pleading a federal claim. The second
amended complaint does not cure the pleading deficiencies evident in the original complaint or
the first amended complaint. Plaintiff fails to demonstrate how the conduct of each defendant
resulted in a deprivation of plaintiffs’ federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.
1980). Nor does the second amended complaint contain a short and plain statement of the claim
as required by Fed. R. Civ. P. 8(a)(2). Plaintiff has now filed three complaints in this action.
Like the prior complaints, the second amended complaint still fails to state a claim or comply
with the Rule 8 pleading requirements.
Despite repeated opportunities to cure the deficiencies in her complaints, plaintiff has
failed to do so. Moreover, it appears that further amendment would be futile. Thus the
undersigned will recommend dismissal of this action.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend judgment (ECF
No. 8) is denied as moot.
IT IS HEREBY RECOMMENDED that this action be dismissed.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
within the specified time may waive the right to appeal the District Court’s order. Martinez v.
Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: May 31, 2017
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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