Opinion
CV 23-4069-DMG (AS)
09-30-2024
EURAL DUANE DEBBS, SR., Plaintiff, v. GOLDEN PALACE ASSISTED LIVING FACILITIES, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DOLLY M. GEE CHIEF UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Complaint, all of the records herein, and the Report and Recommendation of the United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
Plaintiff objects that he should be granted “the Legal Right to fix or repair [a]ny deficiencies to this case” because he “has suffered serious harm as well as injuries [a]s a result of actions of these defendants.” [Doc. # 57 at 1-2.] Plaintiff has already been afforded an opportunity, however, to correct his pleading deficiencies, with detailed instructions, but has failed to do so. The Magistrate Judge gave detailed instructions to Plaintiff that, in order to seek relief under 42 U.S.C. § 1983, he must plausibly allege that Defendants, private parties, engaged in action that could fairly be attributable to the state. [Doc. # 21 at 6-9.] The Magistrate Judge also instructed Plaintiff that he could not state a claim based on “merely private conduct, no matter how discriminatory or wrong.” Id. at 6. Despite these instructions, Plaintiff filed an Amended Complaint that realleged Defendants' wrongful private conduct and made only a conclusory allegation of a conspiracy. [Doc. # 48.] Further leave to amend is not warranted in these circumstances. See Curry v. Yelp Inc., 875 F.3d 1219, 1228 (9th Cir. 2017) (“[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to [his] claims, the district court's discretion to deny leave to amend is particularly broad.”) (citation omitted); see also Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008) (leave to file a Second Amended Complaint was not warranted where First Amended Complaint made only conclusory allegations of a conspiracy); Limcaco v. Wynn, 2023 WL 154965, at *3 (9th Cir. 2023) (same).
Finally, as supporting authority, Plaintiff cites Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). [Doc. # 57 at 2.] The portion of this decision which Plaintiff cites sets out the pleading standard, which the Report and Recommendation properly recognized and applied. [Doc. # 56 at 5.]
In sum, Plaintiff's Objections do not cause the Court to reject the Magistrate Judge's conclusions and recommendations. Accordingly, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge in the Report and Recommendation.
IT IS ORDERED that the First Amended Complaint is DISMISSED WITHOUT LEAVE TO AMEND for failure to state a claim, and Judgment shall be entered dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Magistrate Judge's Report and Recommendation on Plaintiff.
Accordingly, Plaintiff's motion for a scheduling order and trial date [Doc. # 53] is DENIED as moot.