(PS)Smith v. Armstrong

Filing 5

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)

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Case 2:21-cv-00110-KJM-DMC Document 5 Filed 01/17/23 Page 1 of 2 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS SMITH, JR., 12 Plaintiff, 13 14 No. 2:21-cv-00110-KJM-DMC v. ORDER BRIAN ARMSTRONG, 15 Defendant. 16 Plaintiff, who is proceeding pro se, brings this civil action. The matter was referred to a 17 18 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 19 20 were served on the parties and which contained notice that the parties may file objections within 21 fourteen days. F. & R., ECF No. 4. No objections to the findings and recommendations have 22 been filed. 23 The court presumes that any findings of fact are correct. See Orand v. United States, 602 24 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 25 See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the 26 magistrate judge are reviewed de novo by both the district court and [the appellate] 27 court . . . .”). 28 ///// 1 Case 2:21-cv-00110-KJM-DMC Document 5 Filed 01/17/23 Page 2 of 2 1 Having reviewed the file, the court adopts the findings and recommendations in part and 2 declines to adopt them in part. As the magistrate judge set forth in the findings and 3 recommendations, the court agrees plaintiff’s case lacks subject matter jurisdiction. F. & R. at 1. 4 But the court disagrees plaintiff’s case should be dismissed with prejudice. See id. at 4 (citing 5 Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam)). Based on just the 6 plaintiff’s complaint, the court cannot conclude plaintiff has no viable federal claim against 7 defendant. See Compl., ECF No. 1. Moreover, the magistrate judge has not explained why 8 plaintiff may not reassert his state law claims in a court with jurisdiction. See generally F. & R. 9 Unlike the Frigard case cited by the magistrate judge, this case does not involve sovereign 10 immunity that would bar any claims plaintiffs may have against defendant. See 862 F.2d at 204. 11 Thus, the court declines to adopt the findings and recommendations to the extent they recommend 12 this court dismiss plaintiff’s case with prejudice. The court instead dismisses plaintiff’s case 13 without prejudice. See id. (stating a dismissal for lack of jurisdiction should be without 14 prejudice unless plaintiff has no way to cure the jurisdictional defect); see also F. R. Civ. P. 41(b) 15 (“[an involuntary dismissal]—except one for lack of jurisdiction . . .—operates as an adjudication 16 on the merits”). 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. 19 The findings and recommendations filed October 19, 2022, ECF No. 4, are adopted in part and not adopted in part; 20 2. This action is dismissed without prejudice for lack of jurisdiction; and 21 3. The clerk of the court is directed to enter judgment and close this file. 22 DATED: January 17, 2023. 23 24 25 26 27 28 2

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