Opinion
5:22-cv-00061-KK-JC
04-10-2024
D.D., Plaintiff, v. UNITED STATES, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
[DOCKET NOS. 48, 49, 65]
HONORABLE KENLYKIYAKATO UNITED STATES DISTRICT JUDGE
The Court has conducted the review required by 28 U.S.C. § 636 - including a de novo review of the matters as to which objections have been made - and accepts the findings, conclusions and recommendation of the Magistrate Judge reflected in the January 22, 2024 Report and Recommendation of United States Magistrate Judge (“Report and Recommendation”) and overrules Plaintiff's Objections to the Report and Recommendation.
IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Leave to Object and File a Surreply (Docket No. 65) is denied.
2. Defendants' Motions to Dismiss the First Amended Complaint (Docket Nos. 48, 49) are granted.
3. Plaintiff's claims against the individual Defendants - Claims One Through Nine, which are predicated on Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), are dismissed without leave to amend.
4. Plaintiff's claim against the United States - Claim Ten, which is predicated on the Federal Tort Claims Act (“FTCA”) - is dismissed with leave to amend.
5. Within twenty (20) days of the date of this Order, Plaintiff shall do one of the following:
(a) if Plaintiff wishes to proceed with his FTCA claim that has been dismissed with leave to amend and is able to cure the pleading defects therein that have been identified in the Report and Recommendation, Plaintiff shall file a Second Amended Complaint; or
(b) if Plaintiff no longer wishes to proceed with this action, Plaintiff shall file a Notice of Dismissal which will result in the voluntary dismissal of this action without prejudice; or
(c) if, notwithstanding the defects in the First Amended Complaint that have been identified in the Report and Recommendation, Plaintiff wishes to stand on the First Amended Complaint, he shall file a Notice of Intent to Stand on
First Amended Complaint, which may result in the dismissal of this action in its entirety based upon such defects.
Plaintiff is advised that any Second Amended Complaint must: (a) be labeled “Second Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the original or First Amended Complaint (Local Rule 15-2); (c) contain a “short and plain” statement of the claim for relief “showing that [Plaintiff] is entitled to relief” (Fed. R. Civ. P. 8(a)); (d) make each allegation “simple, concise and direct” and contain factual allegations in clear short, concise, numbered paragraphs, each “limited as far as practicable to a single set of circumstances” (Fed. R. Civ. P. 8(d)(1), 10(b)); (e) set forth clearly the sequence of events giving rise to the claim for relief; (f) not add Defendants or claims that are not related to the FTCA claim set forth in the First Amended Complaint and not reassert claims that have been dismissed without leave to amend; and (g) set forth “each claim founded on a separate transaction or occurrence . . . in a separate count[.]” Fed.R.Civ.P. 10(b).
6. Plaintiff is cautioned that his failure timely to file a Second Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on First Amended Complaint may be deemed his admission that amendment is futile, and may result in the dismissal of this action with or without prejudice on the grounds set forth in the Report and Recommendation, on the ground that amendment is futile, for failure diligently to prosecute and/or for failure to comply with this Order.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order on Plaintiff and counsel for Defendants.
IT IS SO ORDERED.