(PC) Bratton v. Castillo

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA TORY BRATTON, No. 2:21-cv-00076-KJM-DMC-P 12 Plaintiff, 13 v. ORDER CASTILLO, et al., 15 Defendants.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States magistrate judge as provided by Eastern District of California local rules.

20 On June 13, 2023, the magistrate judge filed findings and recommendations, which were served on the parties and contained notice that the parties may file objections within the time specified therein. Plaintiff filed a notice in response. Notice, ECF No. 35. In the notice, plaintiff states plaintiff will follow the magistrate judge’s recommendations and dismiss the claims against defendant Bobbala. Id. at 2. The court construes plaintiff’s filing as a non-opposition to the findings and recommendations. This court reviews the magistrate judge’s findings and recommendations, but plaintiff need not take any action at this time.

27 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... .”). Having reviewed the || file, the court finds the findings and recommendations to be supported by the record and by the || proper analysis overall. However, the court declines to adopt the magistrate judge’s || recommendation to dismiss without prejudice plaintiff's American Disabilities Act claim. The || Ninth Circuit has instructed district courts to “grant leave to amend even if no request to amend || the pleading was made, unless it determines that the pleading could not possibly be cured by the || allegation of other facts.“ Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (quoting | Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Because plaintiff could plausibly amend || the complaint to state a claim against defendant, leave to amend is granted with respect to all | claims.

11 Accordingly, IT IS HEREBY ORDERED: 12 1. The findings and recommendations filed June 13, 2023, are adopted in part; 13 2. Defendant Bobbala’s motion to dismiss, ECF No. 27, is granted; 14 3. Plaintiff's claims against defendant Bobbala are dismissed without prejudice for 15 failure to state a claim; 16 4. Plaintiff may file a first amended complaint within 30 days from the date of this 17 order; 18 5. If plaintiff fails to file a first amended complaint, the action shall proceed on the 19 original complaint against the answering defendants (Black, Rowland, Staggs-Boatwright, 20 Sanchez, and Castillo) only; and 21 6. The matter is referred back to the assigned magistrate judge for further 22 proceedings, including referral to ADR if appropriate.

23 | DATED: August 18, 2023.

CHIEF ED STATES DISTRICT JUDGE