Dias v. Avila

9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA SEAN DIAS, Case No. 1:24-cv-00354-SAB Plaintiff, ORDER ADOPTING FINDINGS AND 13 RECOMMENDATIONS AND GRANTING v. DEFENDANTS’ MOTION TO DISMISS WILLIAM AVILA, et al., Docs. 4, 8, 11 Defendants.

18 Plaintiff Sean Dias, proceeding pro se, filed this civil rights action in the Superior Court Tulare County on March 7, 2024. Doc. 1 at 6–14. On March 26, 2024, defendants William Avila and Dominick Garay removed the action to this Court. Id. at 1–4. On March 27, 2024, defendants filed a motion to dismiss, Doc. 4, and the motion was directly assigned to the magistrate judge pursuant to L.R. App. A(m), Doc. 8 at 1. However, because plaintiff had not appeared or filed consent or declination of consent forms as required by L.R. App. A(m)(1), the magistrate judge issued findings and recommendations which were referred to the undersigned.

25 The findings and recommendations recommend defendants’ motion to dismiss be granted and plaintiff be granted leave to file an amended complaint. Doc. 8. The findings and recommendations contained notice that any objections to the findings and recommendations were to be filed within twenty-one (21) days from the date of service. The period for filing objections has passed and no objections have been filed.

2 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of this case. Having carefully reviewed the file, the Court concludes the findings and recommendations are supported by the record and by proper analysis. Accordingly, plaintiff’s complaint is dismissed, with leave to amend. Plaintiff shall file an amended complaint, if any, within thirty (30) days of the date of service of this order. Plaintiff is warned that failure to timely file an amended complaint may result in the dismissal of this action with prejudice.

9 Additionally, defendants filed another motion to dismiss on November 20, 2024, arguing that this action should be dismissed with prejudice for failure to prosecute because defendant did not file an amended complaint after the magistrate judge issued the findings and recommendations. Doc. 11 at 1. However, following the issuance of findings and recommendations that recommend dismissal with leave to amend, a plaintiff has no obligation to file an amended complaint unless and until a district judge issues an order adopting those findings and recommendations. See 28 U.S.C. § 636(b)(1). Therefore, defendants’ second motion to dismiss, Doc. 11, is DENIED.

17 Plaintiff is advised that his amended complaint must state what each named defendant did that led to the deprivation of plaintiff’s constitutional rights. Ashcroft v. Iqbal, 556 U.S. 19 662, 678–79 (2009). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . ..” Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Finally, plaintiff is advised that an amended complaint supersedes the original complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended complaint must be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220.

25 / / / / / / / / / | Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations issued May 7, 2024, Doc. 8, are ADOPTED 3 in full; 4 2. Defendants’ motion to dismiss, Doc. 4, filed March 27, 2024, is GRANTED; 5 3. Defendants’ motion to dismiss, Doc. 11, filed November 20, 2024, is DENIED; 6 4. The Clerk’s Office is directed to send Plaintiff a complaint form; 7 5. Plaintiff shall file an amended complaint within thirty (30) days of the date of 8 service of this order; and 9 6. This matter is referred to the assigned magistrate judge for further proceedings.

12 [T IS SO ORDERED. _ 13 Dated: _ January 3, 2025 4h 4 UNITED STATES DISTRICT JUDGE