Opinion
21-cv-05273-WHO
08-06-2021
ABDEL FATAH ELLAWENDY, Plaintiff, v. DEPARTMENT OF THE ARMY, et al., Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RE: DKT. NO. 5
WILLIAM H. ORRICK, UNITED STATES DISTRICT JUDGE
On July 14, 2021, Magistrate Judge Nathanael M. Cousins issued a Report and Recommendation, recommending that plaintiff Abdel Fatah Ellawendy's application to proceed in forma pauperis be granted and the Complaint be dismissed, with the abuse of office and connivance claims dismissed without leave to amend and the remaining Title VII and section 1983 claims with leave to amend. Dkt. No. 5. Objections were due on or before July 28, 2021. On July 27, 2021, Ellawendy filed an Amended Complaint. Dkt. No. 11. No. other objections or responses have been filed as of today's date.
Having reviewed the record in this case, I agree with Magistrate Judge Cousins' Report and Recommendation and adopt it in every aspect. The Amended Complaint is largely identical to the Complaint and suffers from the same flaws Magistrate Judge Cousins assessed in making his recommendation. Ellawendy cannot save his abuse of office claim by relabeling it as “official misconduct.” That claim is dismissed without leave to amend. His remaining Title VII and section 1983 claims fail because he repeats the same allegations as before that fail to state a cause of action. I will give Ellawendy one more opportunity to amend and fix the deficiencies Magistrate Judge Cousins identified with respect to his Title VII and section 1983 claims.
Ellawendy's application to proceed in forma pauperis is GRANTED. The Complaint and Amended Complaint are DISMISSED. Ellawendy may amend the Title VII and section 1983 claims within twenty (20) days of this order.
IT IS SO ORDERED.