Case No. CV 16-05247-JLS (DFM)
Order Accepting in Part Report and Recommendation of United States Magistrate Judge
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint ("FAC"), the records on file, and the Report and Recommendation of the assigned United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendation of the Magistrate judge, except the Magistrate Judge's determination that the First Amended Complaint should be dismissed without leave to amend.
The Report and Recommendation directed Plaintiff to advise the Court if he believed he could amend the FAC to make allegations to cure the deficiencies outlined in the Report and Recommendation. (Doc. 9 at 9 n.4 ("If Plaintiff believes he can amend the FAC to make allegations sufficient to state a [claim], he should say so in his objection to this Report and Recommendation.").) Notably, the Report and Recommendation does not require that Plaintiff outline what those allegations would be. In response, in his Objection to the Report and Recommendation, Plaintiff indicated he believes he can make allegations sufficient to state a claim if he is given the opportunity to amend the FAC. (Doc. 10 at 9-10.) Although Plaintiff does not state with specificity what allegations he would make, he was directed only to state if he believed he could amend to cure the identified deficiencies.
Therefore, the Court dismisses the present action without prejudice and with leave to amend. Plaintiff shall file his Second Amended Complaint no later than thirty (30) days of the entry of this Order. Failure to do so will result in dismissal of the present action with prejudice.
IT IS SO ORDERED.
DATED: July 26, 2017
The Hon. Josephine L. Staton
United States District Judge