(PS) Jackson v. Josiah ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBIN E. JACKSON, No. 2:19-cv-00671-JAM-KJN PS 12 Plaintiff, ORDER 13 v. (ECF No. 44) 14 MARSHA J. JOSIAH, et al., 15 Defendants. 16 17 On June 14, 2021, the magistrate judge filed findings and recommendations (ECF No. 44), 18 which were served on the parties and which contained notice that any objections to the findings 19 and recommendations were to be filed within fourteen (14) days. On June 29, 2021, plaintiff filed 20 objections to the findings and recommendations (ECF No. 45), which have been considered by 21 the court although they were filed one day late. 22 This court reviews de novo those portions of the proposed findings of fact to which an 23 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 24 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981); see also Dawson v. Marshall, 561 F.3d 25 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection 26 has been made, the court assumes its correctness and decides the matter on the applicable law. 27 See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s 28 //// 1 conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 2 452, 454 (9th Cir. 1983). 3 The court has reviewed the applicable legal standards and, good cause appearing, 4 concludes that it is appropriate to adopt the findings and recommendations in full.1 Accordingly, 5 IT IS HEREBY ORDERED that: 6 1. The findings and recommendations (ECF No. 44) are ADOPTED IN FULL; 7 2. Plaintiff’s motion to supplement the complaint (ECF No. 36) is GRANTED; 8 3. Plaintiff’s original complaint is supplemented to add the allegations and requests for 9 relief identified by the magistrate judge in plaintiff’s supporting declaration and 10 Exhibit A; 11 4. Defendants’ motion to dismiss (ECF No. 37) is GRANTED; 12 5. Plaintiff’s compla int, as supplemented, is DISMISSED without leave to amend and 13 without prejudice, for lack of federal subject-matter jurisdiction; and 14 6. The Clerk of Court is directed to CLOSE this case. 15 16 DATED: July 7, 2021 /s/ John A. Mendez 17 THE HONORABLE JOHN A. MENDEZ 18 UNITED STATES DISTRICT COURT JUDGE 19 20 21 22 1 The court notes that, contrary to plaintiff’s argument, the magistrate judge never “vacated” 23 defendants’ motion to dismiss, itself; rather, the magistrate judge vacated the hearing on the motion to dismiss, which was originally scheduled for April 15, 2021. The magistrate judge 24 vacated that hearing in a written order issued on March 12, 2021 and mailed to plaintiff the same day. (ECF No. 40; Dkt. Text 3/12/2021.) The March 12, 2021 order set deadlines for the parties 25 to complete their briefing of the motion to dismiss and plaintiff’s motion to supplement—with 26 each side’s reply due on April 15, 2021—and stated that the motions would thereafter be “deemed submitted.” (ECF No. 40 at 2.) Thus, there is no merit to plaintiff’s argument that the 27 timing of defendants’ reply (properly filed on April 15, 2021) denied her an opportunity to be heard. (ECF No. 45 at 5.) Moreover, the court’s local rules for motions practice provide only for 28 oppositions and replies, not sur-replies, as a matter of course.