Case No. CV 17-2969 SJO (SS)
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge Plaintiff's Objections, and Plaintiff's Declaration in Support of the Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge, as modified below.
The Report and Recommendation recommended dismissal of this action in part because Plaintiff had failed to file a First Amended Complaint despite the Court's Order requiring him to do so in the Order Dismissing with Leave to Amend ("ODLA," Dkt. No. 6). After the Report issued, Plaintiff filed a First Amended Complaint. (See Dkt. No. 16). The First Amended Complaint repeats many of the deficiencies that were noted in the Court's ODLA concerning the original Complaint. Primarily, Plaintiff continues to attempt to sue the district attorney who brought a criminal action against him.
As stated previously, Defendant is immune from suit. (See ODLA at 10 n.3; Report and Recommendation at 8-12). Thus, the First Amended Complaint fails to correct the deficiencies of the original Complaint. Because the only named Defendant is immune from suit, the First Amended Complaint is fatally flawed and further amendment would be futile. Accordingly, the belated filing of a First Amended Complaint does not alter the Court's decision to dismiss this action.
However, the Court declines to adopt the portions of the Report and Recommendation recommending dismissal of this action for failure to prosecute and obey Court orders based on Plaintiff's failure to file a First Amended Complaint. The Court adopts the recommendation to dismiss this action on immunity grounds alone, which is an independent and sufficient basis for dismissal. Because dismissal with prejudice is appropriate where an amended pleading does not "contain allegations sufficient to overcome judicial and prosecutorial immunities," the Court will amend the recommendation to dismiss this action "without prejudice" to dismissal with prejudice. Ashelman v. Pope, 793 F.2d 1072, 1078 (1986).
IT IS ORDERED that Judgment shall be entered dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Plaintiff at his current address of record.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: 6/19/18
S. JAMES OTERO
UNITED STATES DISTRICT JUDGE