Opinion
3:24-cv-05764-DGE
11-13-2024
TONY LAMAR CARD, Plaintiff, v. LUKE HILLMAN, et al., Defendants.
REPORT AND RECOMMENDATION
GRADY J. LEUPOLD, UNITED STATES MAGISTRATE JUDGE
Noting Dated: November 27, 2024
The District Court has referred Plaintiff Tony Lamar Card's pending Application to Proceed In Forma Pauperis (“IFP”) and Proposed Complaint to United States Magistrate Judge Grady J. Leupold pursuant to Amended General Order 11-22.
On September 10, 2024, Plaintiff filed a Proposed Complaint and an Application to Proceed IFP, that is, without paying the filing fee for a civil case. See Dkts. 1, 1-1. The IFP Application was referred to the undersigned on September 11, 2024. See Dkt. 2. On October 1, 2024, the Court screened Plaintiff's Proposed Complaint and found it was deficient because, pursuant to Federal Rule of Civil Procedure 8, Plaintiff failed to state a claim upon which relief may be granted. Id. In that Order, the Court gave Plaintiff leave to file an amended complaint to cure the deficiencies by November 1, 2024, and re-noted the pending IFP Application. Id. The Court warned that failure to file a proposed amended complaint would result in the Court recommending the dismissal of this matter without prejudice. Id.
Prior to the due date for filing an amended complaint, Plaintiff filed three documents with the Court outlining his grievances against several federal and state officials and including potential accusations of “treason” on the part of these officials. See Dkts. 5-7. Two of these documents, docketed as “Affidavit of Truth,” and “Notice to the Court,” include a recitation of facts in numbered paragraphs which he asserts are in compliance with Federal Rule of Civil Procedure 10 and relate to Plaintiff's allegations of unlawful arrest and kidnapping. See Dkt. 5 at 2-4; Dkt. 7 at 8-10.
Not one of the three tendered documents can be construed as an amended complaint, as none contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). See also Dkts. 5-7. Further, in addition to finding these documents lack the form and substance of a complaint, the Court also notes they do not describe, or show cause, why the Proposed Complaint (Dkt. 1-1) should not be dismissed, as none provide sufficient facts to support a claim for relief or a cognizable legal theory. See Dkts. 5-7. See also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (“Dismissal [of a complaint] can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”).
The date for filing an amended complaint has now passed and Plaintiff has failed to comply with the Court's October 1, 2024, Order (Dkt. 4). He has not filed a proposed amended complaint correcting the deficiencies contained within the Proposed Complaint or otherwise responded to the Court's Order. As Plaintiff has failed to respond to the Court's Order and prosecute this case, the Court recommends this case be DISMISSED without prejudice and the IFP Application (Dkt. 1) be DENIED as moot.
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on November 27, 2024, as noted in the caption.