Silva v. Lewis County Prosecutor's Office

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 MARK ALLEN SILVA, CASE NO. 3:24-cv-05504-TMC-GJL 11 Plaintiff, v. REPORT AND RECOMMENDATION LEWIS COUNTY PROSECUTOR'S NOTING DATE: October 8, 2024 13 OFFICE, 14 Defendant.

15 The District Court has referred this prisoner civil rights action to United States Magistrate Judge Grady J. Leupold. After being advised of the pleading deficiencies in his initial Complaint (Dkts. 1-1, 4), Plaintiff Mark Allen Silva, proceeding pro se and in forma pauperis, filed an Amended Complaint (Dkt. 5).

19 In screening the Amended Complaint, the Court found that the following pleading deficiencies remained: “Plaintiff has failed to name a proper defendant for his claim, he has not put forth sufficient facts to demonstrate liability for either an individual or official capacity claim, and his specific constitutional claims are difficult to decipher and appear nonviable.” Dkt.

23 7 at 8; see also Dkt. 4 (identifying similar deficiencies in initial Complaint). Concluding these deficiencies were not curable, the Court ordered Plaintiff to SHOW CAUSE why this action should not be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(b) and without a second opportunity to amend. Id. at 9; see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”); Swearington v. California Dep't of Corr. & Rehab., 624 F. App’x 956, 959 (9th Cir. 2015) (finding the district court did not abuse its discretion in dismissing without leave to amend where pro se plaintiff failed to cure pleading deficiencies).

8 The show cause deadline has now elapsed with no response received from Plaintiff.

9 Accordingly, the undersigned recommends this action be DISMISSED for failure to state a claim and for failure to comply with a court order. Dismissal on the recommended grounds constitutes a “strike” under 28 U.S.C. § 1915(g).

12 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on October 8, 2024, as noted in the caption.

20 Dated this 23rd day of September, 2024.

A 23 Grady J. Leupold United States Magistrate Judge