(PC) Ross v. CDCR et al

Filing 15

ORDER signed by Chief District Judge Kimberly J. Mueller on 2/5/2024 ADOPTING IN PART 14 Findings and Recommendations and DISMISSING this action with leave to amend. An Amended Complaint shall be filed within 30 days of the date of service of this order, and this matter is REFERRED BACK to the assigned magistrate judge for all further pretrial proceedings consistent with this order. (Woodson, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MALCOLM RAY ROSS, 12 Plaintiff, 13 14 Case No. 2:23-cv-01920-KJM-JDP (PC) v. ORDER CDCR, et al., 15 Defendants. 16 Plaintiff, a former state prisoner proceeding pro se, has filed this civil rights action 17 18 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On December 12, 2023, the magistrate judge filed findings and recommendations, which 20 21 were served on plaintiff, and which contained notice to plaintiff that any objections to the 22 findings and recommendations were to be filed within fourteen days. Plaintiff has not filed 23 objections to the findings and recommendations. The court presumes that any findings of fact are correct. See Orand v. United States, 24 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 ///// 1 1 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 2 supported by the record and by the proper analysis, except for the recommendation of dismissal 3 without leave to amend. Therefore, the court adopts the findings and recommendations with one 4 modification: the court dismisses the case with leave to amend one more time. Akhtar v. Mesa, 5 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint 6 without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could 7 not be cured by amendment.’”). 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed December 12, 2023, ECF No. 14, are adopted 10 in part; 11 2. This action is dismissed for failure to state a claim, with leave to amend one more time; 12 3. Any amended complaint shall be filed within 30 days of the date of service of this 13 14 order; and 4. This matter is referred back to the assigned magistrate judge for all further pretrial 15 proceedings consistent with this order. 16 DATED: February 5, 2024. 17 18 19 20 21 22 23 24 25 26 27 28 2

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