(PC) Price v. Moncus ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GABRIEL PRICE, No. 2:19-cv-1089 KJM AC P 12 Plaintiff, 13 v. ORDER 14 L. MONCUS, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 12, 2021, the magistrate judge issued findings and recommendations, which 21 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 22 and recommendations were to be filed within twenty-one days. ECF No. 10. Plaintiff has not 23 filed objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 ///// 1 | ....°). Having reviewed the file, the court agrees the complaint does not state a claim for relief. 2 The magistrate judge recommends dismissing the complaint without leave to amend 3 || because an amendment would be an exercise in futility. The court cannot reach the same 4 | conclusion on this record. It is possible that at least some shortcomings identified in the 5 || magistrate judge’s findings and recommendations could be cured by the addition of factual 6 | allegations. See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th 7 || Cir. 2013) (“Courts may decline to grant leave to amend only if there is strong evidence of ‘undue 8 | delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 9 || by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance 10 | of the amendment, [or] futility of amendment, etc.’” (quoting Foman v. Davis, 371 U.S. 178, 182 11 | (1962))). 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The findings and recommendations issued April 12, 2021 (ECF No. 10), are 14 | ADOPTED in part, and 15 2. This matter is DISMISSED with leave to amend for failure to state a claim upon which 16 || relief may be granted. See 28 U.S.C. § 1915A(b)(1). Any amended complaint must be filed 17 | within thirty days. 18 | DATED: June 23, 2021. 19 20 l ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 22 23 24 25 26 27 28