United States District Court, E.D. California
DAWNE C. SHACKELFORD, Plaintiff,
v.
VIRTU INVESTMENTS, LLC, Defendant.
ORDER
Troy
L. Nunley United States District Judge.
Plaintiff
Dawne C. Shackelford (“Plaintiff”), proceeding
pro se, brings the instant action. The matter was
referred to a United States Magistrate Judge pursuant to
Eastern District of California Local Rule 302(c)(21).
On
October 3, 2019, the magistrate judge filed findings and
recommendations herein which were served on Plaintiff and
which contained notice to Plaintiff that any objections to
the findings and recommendations were to be filed within
fourteen days. (ECF No. 15.) On October 17, 2019, Plaintiff
filed Objections to the Findings and Recommendations. (ECF
No. 16.)
This
Court reviews de novo those portions of the proposed
findings of fact to which objection has been made. 28 U.S.C.
§ 636(b)(1); McDonnell Douglas Corp. v. Commodore
Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981),
cert. denied, 455 U.S. 920 (1982). As to any portion
of the proposed findings of fact to which no objection has
been made, the Court assumes its correctness and decides the
motions on the applicable law. See Orand v. United
States, 602 F.2d 207, 208 (9th Cir. 1979). The
magistrate judge's conclusions of law are reviewed de
novo. See Britt v. Simi Valley Unified Sch.
Dist., 708 F.2d 452, 454 (9th Cir. 1983).
Having
carefully reviewed the entire file under the applicable legal
standards, the Court finds the Findings and Recommendations
to be supported by the record and by the magistrate
judge's analysis.
The
magistrate judge recommended dismissal on the basis that
Plaintiff fails to allege facts showing the Americans with
Disabilities Act[1] (“ADA”) applies because
Plaintiff no longer lives at the apartment complex that is
the subject of her claims (and therefore cannot establish
entitlement to injunctive relief). (ECF No. 15 at 3.)
Similarly, the Findings and Recommendations find Plaintiff
fails to allege facts that the Service members Civil Relief
Act[2](“SCRA”) applies because
Plaintiff is not on active military service but is a
“retired Gulf war veteran.” (ECF No. 15 at 4.)
Plaintiff
objects to the recommendation to dismiss her Second Amended
Complaint with prejudice because, Plaintiff asserts, she
could add allegations of continuing harm caused by unnamed
defendants. (ECF No. 16 at 1.) Plaintiff does not,
however, provide the proposed allegations or identify what
harm will be alleged. Further, the Court finds
Plaintiff's proposed amendments would not cure the
inherent defects in her ADA or SCRA claims. Indeed, Plaintiff
does not object to the findings that the allegations in her
complaint establish the ADA and SCRA are inapplicable to her
claims. Therefore, Plaintiff fails to indicate that further
amendment could cure the defects identified in the Findings
and Recommendations. Accordingly, Plaintiff's objections
are overruled.
Accordingly,
IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed October 3, 2019
(ECF No. 15), are adopted in full;
2. Plaintiffs Second Amended Complaint (ECF No. 8) is
DISMISSED, without leave to amend, for failure to state a
claim; and
3. The Clerk of the Court is directed to close the case.
IT IS
SO ORDERED.
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