Francios Tabi v. The Regents and Trustees of Santa Ana College

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FRANCOIS TABI, Case No. 8:20-cv-00323-VBF-JC ORDER (1) ACCEPTING FINDINGS, CONCLUSIONS, AND

RECOMMENDATIONS OF U.S. Plaintiff, MAGISTRATE JUDGE; (2) GRANTING MOTION TO DISMISS AND

DISMISSING ORIGINAL COMPLAINT [DKT. 12]; (3) STRIKING v. UNAUTHORIZED FIRST AMENDED COMPLAINT [DKT. 46]; (4) DENYING MOTION TO DISMISS FIRST AMENDED COMPLAINT AS MOOT [DKT. 51]; (5) DENYING REQUEST TO ENTER DEFAULT [DKT. 37]; REGENTS AND TRUSTEES OF (6) DENYING FIRST MOTION TO SANTA ANA COLLEGE, et al., AMEND [DKT. 36] AND VACATING HEARING ON, SUBMITTING AND DENYING SECOND MOTION TO AMEND WITHOUT PREJUDICE [DKT.

62]; AND (7) CAUTIONING PLAINTIFF AGAINST THE FILING OF ABUSIVE Defendants. DOCUMENTS

The Court has conducted the review required by 28 U.S.C. § 636 and accepts the findings, conclusions and recommendation of the Magistrate Judge reflected in the March 5, 2021 Report and Recommendation of United States Magistrate Judge (“Report and Recommendation”).

The Court has also reviewed and herein rules on certain of the parties’ other submissions.

IT IS HEREBY ORDERED:

1. Rancho Santiago Community College District’s Motion to Dismiss (Dkt. No. 12) is granted and (a) Plaintiff’s official capacity claims – other than any claim for prospective injunctive relief – are dismissed without leave to amend; (b) Any official capacity claim for prospective injunctive relief is dismissed with leave to amend; (c) Plaintiff’s individual capacity claims are dismissed with leave to amend; and (d) Plaintiff’s state law claims are dismissed without prejudice. 2. Plaintiff’s Motion for Leave to Amend Complaint (Dkt. No. 36) is denied without prejudice to the filing of a First Amended Complaint which comports with the instant Order.

3. Plaintiff’s Request for Entry of Default (Dkt. No. 37) is denied. 4. Plaintiff’s unauthorized First Amended Complaint (Dkt. 46) is struck from the docket because it was filed without the requisite consent of defendants or leave of Court.1 See Fed. R. Civ. P. 15(a)(1-2); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (district courts have inherent power to control their dockets, which includes the power to strike items from the docket); Hayes v. Idaho Corr. Ctr., 812 F. App’x 568, 569 (9th Cir. 2020) (affirming district

1While the Report and Recommendation recommended granting the Motion to Dismiss with leave to amend as to most of plaintiff’s claims, the Report and Recommendation had not been accepted at the time plaintiff filed the First Amended Complaint and, therefore, it did not constitute “the court’s leave” within the meaning of Rule 15(a)(2). court’s decision to strike plaintiff’s amended complaint when plaintiff filed the amended complaint without complying with Fed. R. Civ. P. 15(a)(2)).

5. Defendants’ Motion to Dismiss the First Amended Complaint (Dkt. No. 51) is denied as moot.

6. Plaintiff’s Motion for Leave to File a Second Amended Complaint (Dkt. No. 62) is submitted for decision and the July 20, 2021 hearing thereon is vacated. See Fed. R. Civ. P. Rule 78; Local Rule 7-15. Such motion is denied without prejudice to the filing of a First Amended Complaint which comports with the instant Order.

7. Within fourteen (14) days, Plaintiff shall do one of the following: (a) file a First Amended Complaint which cures the defects set forth in the Report and Recommendation;2 (b) file a Notice of Dismissal which will result in the voluntary dismissal of this action without prejudice; or (c) file a Notice of Intent to Stand on Complaint, indicating plaintiff’s intent to stand on the Complaint despite the pleading defects set forth in the Report and Recommendation, which

2Any First Amended Complaint must: (a) be labeled “First Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the original Complaint – i.e., it must include all claims on which plaintiff seeks to proceed (Local Rule 15-2); (c) contain a “short and plain” statement of each claim for relief “showing that [plaintiff] is entitled to relief” (Fed. R. Civ. P. 8(a)); (d) make each allegation “simple, concise and direct” and contain factual allegations in clear short, concise, numbered paragraphs, each “limited as far as practicable to a single set of circumstances” (Fed. R. Civ. P. 8(d)(1), 10(b)); (e) set forth clearly the sequence of events giving rise to the claims for relief; (f) reflect which claims are brought against which defendant(s) in which capacity and allege specifically what each defendant did and how that individual’s conduct specifically violated plaintiff’s civil rights; (g) not add defendants or claims that are not related to the claims asserted in the original Complaint or lodged proposed Second Amended Complaint; and (h) name all parties in the caption/title (Fed. R. Civ. P. 10(a)). may result in the dismissal of this action in its entirety based upon such defects.

8. Plaintiff is cautioned that his failure timely to file a First Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on Complaint may be deemed plaintiff’s admission that amendment is futile, and may result in the dismissal of this action with or without prejudice on the grounds set forth above, on the ground that amendment is futile, for failure diligently to prosecute and/or for failure to comply with the District Judge’s Order.

9. Plaintiff is further cautioned that any future submission of abusive documents to the Court may result in sanctions, which could include striking any abusive filing and/or dismissal of this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order on Plaintiff and counsel for Defendants.

IT IS SO ORDERED

DATED: August 4, 2021 /s/ Valerie Baker Fairbank ________________________________________ HONORABLE VALERIE BAKER FAIRBANK SENIOR UNITED STATES DISTRICT JUDGE