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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RHONDA IREDIA-ORTEGA,

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No. 2:17-cv-00843 MCE CKD PS

Plaintiff,
v.

ORDER &

BAKER RESIDENTIAL ACADEMIC
PROGRAM UNIVERSITY OF CAL, et
al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed a

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document that appears to seek amendment of a judgment. (ECF No. 8.) No judgment has yet

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been entered in this matter. Plaintiff’s motion will therefore be denied as moot. To the extent

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plaintiff seeks habeas relief, plaintiff must file a separate habeas action.

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Plaintiff has also filed a second amended complaint. (ECF No. 10.) The federal in forma

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pauperis statute authorizes federal courts to dismiss a case if the action is legally “frivolous or

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malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from

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a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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Plaintiff was previously advised of the standards for pleading a federal claim. The second

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amended complaint does not cure the pleading deficiencies evident in the original complaint or

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the first amended complaint. Plaintiff fails to demonstrate how the conduct of each defendant

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resulted in a deprivation of plaintiffs’ federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.

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1980). Nor does the second amended complaint contain a short and plain statement of the claim

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as required by Fed. R. Civ. P. 8(a)(2). Plaintiff has now filed three complaints in this action.

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Like the prior complaints, the second amended complaint still fails to state a claim or comply

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with the Rule 8 pleading requirements.
Despite repeated opportunities to cure the deficiencies in her complaints, plaintiff has

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failed to do so. Moreover, it appears that further amendment would be futile. Thus the

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undersigned will recommend dismissal of this action.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend judgment (ECF
No. 8) is denied as moot.

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IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 31, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/ired0843.SAC_57

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