Machado v. Lizarraga

Filing 38

ORDER signed by District Judge Troy L. Nunley on 1/11/19 ADOPTING 33 FINDINGS AND RECOMMENDATIONS. Defendant's 24 motion to dismiss is GRANTED. Plaintiff is afforded 30 days to file a Second Amended Complaint. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUANITA MACHADO,

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No. 2:17-cv-02430-TLN-CKD

Plaintiff,
v.

ORDER

J. A. LIZARRAGA,
Defendant.

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In the instant action Plaintiff is proceeding pro se. This action was referred to a United

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States Magistrate Judge pursuant to Local Rule 302(c). On October 18, 2018, the magistrate

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judge filed findings and recommendations herein which contained notice that any objections to

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the findings and recommendations were to be filed within fourteen days. (ECF No. 33.) Plaintiff

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has filed objections to the findings and recommendations. (ECF No. 36.)

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This Court reviews de novo those portions of the proposed findings of fact to which

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objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore

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Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As

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to any portion of the proposed findings of fact to which no objection has been made, the Court

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assumes its correctness and decides the motions on the applicable law. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir.1979). The magistrate judge’s conclusions of law are reviewed

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de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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The Court has reviewed the applicable legal standards and good cause appearing,

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concludes that it is appropriate to adopt the proposed findings and recommendations. However,

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Plaintiff will be given leave to amend because the Court does not agree that it is impossible for

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Plaintiff to cure the deficiencies in his Complaint. Plaintiff “requests that the Court modify the

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recommendation of the Magistrate Judge, and that it dismiss the Amended Complaint with leave

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to amend, so that Plaintiff may re-plea causation.” (ECF No. 36 at 2.)

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Leave to amend “shall be freely given when justice so requires.” Rule 15(a). In civil
rights cases, courts must liberally construe the pleadings and resolve doubts in favor of the

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plaintiff, and “[a] pro se litigant must be given leave to amend his or her complaint unless it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Karim-

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Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623–24 (9th Cir. 1988) (quotation and citation

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omitted). A court should grant leave to amend “if it appears at all possible that the plaintiff can

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correct the defect” by alleging other facts. Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir.

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2000). The findings and recommendations stated that “it does not appear the pleadings can be

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cured by further amendment,” (ECF No. 33 at 5) but this Court is not convinced that it is

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impossible for Plaintiff to cure the deficiencies in her first amended complaint by alleging

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additional facts.

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For Plaintiff’s claims to proceed, she must cure the deficiencies noted in the findings and

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recommendations. (See ECF No. 33 at 4–5.) Further, Plaintiff must, in her amended complaint,

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allege facts that show causation and that the adverse action did not reasonably advance any

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legitimate correctional goal. (See ECF No. 33 at 4–5.)

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Moreover, under Local Rule 220, Plaintiff’s amended complaint must be “complete in

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itself without reference to the prior . . . pleading.” The Court cannot refer to information in the

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original complaint or Plaintiff’s first amended complaint to complete Plaintiff’s second amended

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complaint. Local Rule 220.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed October 18, 2018 are adopted as followed;
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2. Defendant’s motion to dismiss (ECF No. 24) is granted;

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3. The First Amended Complaint (ECF No. 14) is dismissed with leave to amend;

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4. Plaintiff shall be afforded thirty (30) days to file a Second Amended Complaint;

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5. Plaintiff’s failure to timely file a Second Amended Complaint in accordance with this

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Order may result in dismissal of this action.

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Dated: January 11, 2019

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Troy L. Nunley
United States District Judge

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