(PS) Van den Heuvel v. Frail ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HEUVEL, No. 2:22–cv–02277-DAD–KJN (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. 14 MICHAEL FRAIL, 15 Defendant. 16 17 Plaintiff, who is proceeding without counsel in this action, was granted leave to proceed in 18 forma pauperis (“IFP”) on June 30, 2023.1 (ECF No. 9.) The court reviewed plaintiff’s 19 complaint, but found that it required dismissal as it failed to state a cognizable claim for relief. 20 (Id. at 5.) The court provided plaintiff the pleading standards under Federal Rule of Civil 21 Procedure 8 and 42 U.S.C. § 1983. (Id. at 2-4.) Plaintiff was granted leave to file a first amended 22 complaint or a notice of voluntary dismissal within thirty days and was cautioned that failure to 23 comply with the court’s order would result in a recommendation that the action be dismissed with 24 prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Id. at 6.) 25 On July 17, 2023 and July 28, 2023 plaintiff filed additional documents with this court. 26 (ECF Nos. 10 and 11.) Although the court construes these filings broadly, neither filing states a 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 | claim for a relief and thus plaintiff has failed to correct the defects identified in the court’s June 2 | 30, 2023 order. 3 In light of plaintiff’s failure to cure the defects identified in this court’s prior order, the 4 | undersigned finds that granting further leave to amend would be futile. Hartmann v. CDCR, 707 5 | F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when amendment 6 || would be futile.”). Accordingly, the court hereby recommends dismissal of this action with 7 || prejudice. 8 FINDINGS AND RECOMMENDATIONS 9 Accordingly, IT IS RECOMMENDED that: 10 1. This action be DISMISSED WITH PREJUDICE; and 11 2. The Clerk of Court be directed to CLOSE this case. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 14 | days after being served with these findings and recommendations, plaintiff may file written 15 || objections with the court. Such a document should be captioned “Objections to Magistrate 16 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 19 | 1991). 20 || Dated: November 7, 2023 Aectl Aharon 22 KENDALL J. NE 3977 vand UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28