Opinion
2:19-cv-1089 KJM AC P
06-23-2021
GABRIEL PRICE, Plaintiff, v. L. MONCUS, Defendant.
ORDER
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 12, 2021, the magistrate judge issued findings and recommendations, which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within twenty-one days. ECF No. 10. Plaintiff has not filed objections to the findings and recommendations.
The court presumes that any findings of fact are correct. 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 Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). Having reviewed the file, the court agrees the complaint does not state a claim for relief.
The magistrate judge recommends dismissing the complaint without leave to amend because an amendment would be an exercise in futility. The court cannot reach the same conclusion on this record. It is possible that at least some shortcomings identified in the magistrate judge's findings and recommendations could be cured by the addition of factual allegations. See Sonoma Cty. Ass'n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (“Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment, etc.'” (quoting Foman v. Davis, 371 U.S. 178, 182 (1962))).
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations issued April 12, 2021 (ECF No. 10), are ADOPTED in part, and
2. This matter is DISMISSED with leave to amend for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1). Any amended complaint must be filed within thirty days