Iredia-Ortega v. Baker Residential Academic Program University of Cal et al

Filing 11

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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RHONDA IREDIA-ORTEGA, 12 13 14 15 16 No. 2:17-cv-00843 MCE CKD PS Plaintiff, v. ORDER & BAKER RESIDENTIAL ACADEMIC PROGRAM UNIVERSITY OF CAL, et al., FINDINGS AND RECOMMENDATIONS Defendants. 17 18 Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed a 19 document that appears to seek amendment of a judgment. (ECF No. 8.) No judgment has yet 20 been entered in this matter. Plaintiff’s motion will therefore be denied as moot. To the extent 21 plaintiff seeks habeas relief, plaintiff must file a separate habeas action. 22 Plaintiff has also filed a second amended complaint. (ECF No. 10.) The federal in forma 23 pauperis statute authorizes federal courts to dismiss a case if the action is legally “frivolous or 24 malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from 25 a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 1 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. 3 Plaintiff was previously advised of the standards for pleading a federal claim. The second 4 amended complaint does not cure the pleading deficiencies evident in the original complaint or 5 the first amended complaint. Plaintiff fails to demonstrate how the conduct of each defendant 6 resulted in a deprivation of plaintiffs’ federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 7 1980). Nor does the second amended complaint contain a short and plain statement of the claim 8 as required by Fed. R. Civ. P. 8(a)(2). Plaintiff has now filed three complaints in this action. 9 Like the prior complaints, the second amended complaint still fails to state a claim or comply 10 11 with the Rule 8 pleading requirements. Despite repeated opportunities to cure the deficiencies in her complaints, plaintiff has 12 failed to do so. Moreover, it appears that further amendment would be futile. Thus the 13 undersigned will recommend dismissal of this action. 14 15 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend judgment (ECF No. 8) is denied as moot. 16 IT IS HEREBY RECOMMENDED that this action be dismissed. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 23 Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: May 31, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 25 26 27 2/ired0843.SAC_57 28 2

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?