(PC) Goins v. Bobbla ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND LEE GOINS, No. 2:18-cv-00034-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 A. DIMACULANGAN, et al., 15 Defendants. 16 17 Raymond Lee Goins (“Plaintiff”), a state prisoner proceeding pro se, brings this civil 18 rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 and is before the Court on 20 Defendant Truong Bao Le’s (“Defendant”) motion to dismiss. (ECF No. 62.) Plaintiff opposed 21 (ECF No. 72) and Defendant replied (ECF No. 74.) 22 On January 8, 2020, the magistrate judge assigned to this case filed Findings and 23 Recommendations herein which were served on all parties and which contained notice to all 24 parties that any objections to the findings and recommendations were to be filed within fourteen 25 days. (ECF No. 79.) Neither party filed objections to the findings and recommendations. 26 /// 27 /// 28 /// 1 Accordingly, the Court presumes that any findings of fact are correct. See Orand v. 2 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 3 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 4 1983); see also 28 U.S.C. § 636(b)(1). 5 Having reviewed the file under the applicable legal standards, the Court finds the Findings 6 and Recommendations to be supported by the record and by the magistrate judge’s analysis. 7 However, the Findings and Recommendations do not indicate whether the recommendation is to 8 dismiss with or without prejudice. If a complaint fails to state a plausible claim, “a district court 9 should grant leave to amend even if no request to amend the pleading was made, unless it 10 determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez 11 v.Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 12 494, 497 (9th Cir. 1995)); see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) 13 (finding no abuse of discretion in denying leave to amend when amendment would be futile). 14 The Court does not find that amendment would be futile at this stage, therefore the findings and 15 recommendations are adopted in part and the remaining claim against Defendant Lee is 16 DISMISSED with leave to amend 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The Findings and Recommendations filed January 8, 2020 (ECF No. 79), are adopted 19 in part; 20 2. Defendant’s Dr. Le’s motion to dismiss (ECF No. 62) is GRANTED without 21 prejudice; and 22 3. Plaintiff’s remaining claim against defendant Dr. Le arising under the Eighth 23 Amendment is DISMISSED with leave to amend. 24 IT IS SO ORDERED. 25 Dated: March 6, 2020 26 27 28