(PS)Smith v. Armstrong
ORDER signed by Chief District Judge Kimberly J. Mueller on 1/17/2023 ADOPTED in PART and NOT ADOPTED in PART 4 Findings and Recommendations. This action is DISMISSED without prejudice for lack of jurisdiction, and the clerk of the court is directed to enter judgment and close this file. CASE CLOSED (Reader, L)
Case 2:21-cv-00110-KJM-DMC Document 5 Filed 01/17/23 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DENNIS SMITH, JR.,
Plaintiff, who is proceeding pro se, brings this civil action. The matter was referred to a
United States Magistrate Judge as provided by Eastern District of California local rules.
On October 19, 2022, the magistrate judge filed findings and recommendations, which
were served on the parties and which contained notice that the parties may file objections within
fourteen days. F. & R., ECF No. 4. No objections to the findings and recommendations have
The court presumes that any findings of fact are correct. See Orand v. United States, 602
F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.
See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the
magistrate judge are reviewed de novo by both the district court and [the appellate]
court . . . .”).
Case 2:21-cv-00110-KJM-DMC Document 5 Filed 01/17/23 Page 2 of 2
Having reviewed the file, the court adopts the findings and recommendations in part and
declines to adopt them in part. As the magistrate judge set forth in the findings and
recommendations, the court agrees plaintiff’s case lacks subject matter jurisdiction. F. & R. at 1.
But the court disagrees plaintiff’s case should be dismissed with prejudice. See id. at 4 (citing
Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam)). Based on just the
plaintiff’s complaint, the court cannot conclude plaintiff has no viable federal claim against
defendant. See Compl., ECF No. 1. Moreover, the magistrate judge has not explained why
plaintiff may not reassert his state law claims in a court with jurisdiction. See generally F. & R.
Unlike the Frigard case cited by the magistrate judge, this case does not involve sovereign
immunity that would bar any claims plaintiffs may have against defendant. See 862 F.2d at 204.
Thus, the court declines to adopt the findings and recommendations to the extent they recommend
this court dismiss plaintiff’s case with prejudice. The court instead dismisses plaintiff’s case
without prejudice. See id. (stating a dismissal for lack of jurisdiction should be without
prejudice unless plaintiff has no way to cure the jurisdictional defect); see also F. R. Civ. P. 41(b)
(“[an involuntary dismissal]—except one for lack of jurisdiction . . .—operates as an adjudication
on the merits”).
Accordingly, IT IS HEREBY ORDERED that:
The findings and recommendations filed October 19, 2022, ECF No. 4, are
adopted in part and not adopted in part;
This action is dismissed without prejudice for lack of jurisdiction; and
The clerk of the court is directed to enter judgment and close this file.
DATED: January 17, 2023.
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