United States District Court, C.D. California, Eastern Division
April 15, 2014
PETER VUJICICH, Petitioner,
A. VANDERBERG et al., Respondents.
FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
GEORGE H. WU, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the records on file, and the Report and Recommendation of the assigned United States Magistrate Judge. No party has filed any written objections to the Report. Except for the following changes, the Court accepts the findings and recommendations of the Magistrate Judge:
A. Page 1, line 25: Delete one § symbol.
B. Page 2, line 1: Replace "Plaintiff's" with "Plaintiff".
C. Page 2, line 7: Insert the following sentence -
Together, the THR Defendants and the County Defendants will be referred to as "Defendants."
D. Page 5, lines 22 and 24: Insert "County" after San Bernardino.
E. Page 7, line 2: Replace "establish" with "indicate".
F. Page 7, lines 6 through 20: Replace the paragraph at lines 6 through 20 with the following -
The Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc) . Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that "[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment" (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) )). Here, the Court cannot say that it would be impossible for Plaintiff to cure the defects of his § 1983 claim against the THR Defendants. Accordingly, the complaint will be dismissed with leave to amend.
IT IS THEREFORE ORDERED as follows:
1. Plaintiff's motions to strike are denied.
2. The County Defendants' motion to dismiss is denied.
3. The THR Defendants' request for judicial notice is granted.
4. The THR Defendants' motion to dismiss is granted. The complaint as to defendants Frank Wheatley and THR California LLC is hereby dismissed with leave to amend. If Plaintiff wishes to pursue his claims against the THR Defendants in this Court, he must file a First Amended Complaint within twenty-eight (28) days of the date of this Order Accepting Report and Recommendation is filed. The First Amended Complaint, bearing the number CV 13-01472-JAK (DFM), must be a complete and independent document and must not refer to prior pleadings. Plaintiff is cautioned that failure to file a First Amended Complaint within the time specified by this Order may result in the dismissal of this action with prejudice on the grounds stated in the Report and Recommendation of the U.S. Magistrate Judge and/or for failure to prosecute.