(PC) Khouanmany v. Alencastre ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VILAYCHITH KHOUANMANY, No. 2:17-cv-01326-TLN-EFB 12 Plaintiff, 13 v. ORDER 14 UNITED STATES MARSHALS, et al., 15 Defendants. 16 17 Plaintiff Vilaychith Khouanmany (“Plaintiff”), a federal prisoner proceeding pro se, 18 brings this civil action with claims premised under Bivens v. Six Unknown Named Agents, 403 19 U.S. 388 (1971). The matter was referred to a United States Magistrate Judge pursuant to 28 20 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On October 17, 2019, the magistrate judge filed findings and recommendations herein 22 which were served on all parties and which contained notice to all parties that any objections to 23 the findings and recommendations were to be filed within fourteen days. (ECF No. 106.) On 24 November 4, 2019, Plaintiff filed Objections to the Findings and Recommendations. (ECF No. 25 109.) 26 This Court reviews de novo those portions of the proposed findings of fact to which 27 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 28 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 1 to any portion of the proposed findings of fact to which no objection has been made, the Court 2 assumes its correctness and decides the motions on the applicable law. See Orand v. United 3 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 4 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 5 Having carefully reviewed the entire file under the applicable legal standards, the Court 6 finds the Findings and Recommendations to be supported by the record and by the magistrate 7 judge’s analysis. 8 Plaintiff’s Objections, like her Motion to Amend, fail to offer new, cognizable theories of 9 liability or meaningfully clarify her original allegations. Further, as the Findings and 10 Recommendations properly note, the procedural posture of this action — namely, that this action 11 was filed more than two years ago (see ECF No. 1) and is proceeding on Plaintiff’s Second 12 Amended Complaint (ECF No. 72) — demonstrates that Plaintiff has been accorded both 13 sufficient time and opportunity to identify her claims and defendants. The Court agrees that 14 permitting further amendment would be futile and would result in undue delay and undue 15 prejudice to the opposing party. Therefore, Plaintiff’s objections are overruled. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The Findings and Recommendations, filed October 17, 2019 (ECF No. 106), are 18 adopted in full; and 19 2. Plaintiff’s Motion to Amend (ECF No. 101) is DENIED. 20 IT IS SO ORDERED. 21 Dated: December 2, 2019 22 23 24 25 26 27 28