(PS) Espino v. Walgreen Co., No. 2:2015cv00423 - Document 26 (E.D. Cal. 2015)
Court Description: ORDER granting 16 Motion to Dismiss and adopting 22 FINDINGS AND RECOMMENDATIONS signed by Chief Judge Morrison C. England, Jr on 11/10/15: Plaintiff's First Amended Complaint 15 is DISMISSED without prejudice. Plaintiff is granted twenty (20) days from the date that this order is electronically filed to file a Second Amended Complaint. (Kaminski, H)
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(PS) Espino v. Walgreen Co. Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS ESPINO, 12 13 14 15 No. 2:15-cv-00423-MCE-AC (PS) Plaintiff, v. ORDER WALGREEN CO., Defendant. 16 17 18 19 Plaintiff is proceeding in this action in pro per. The matter was referred to a United States Magistrate Judge pursuant to Local Rule 302(c)(21). On September 21, 2015, the magistrate judge filed Findings and Recommendations herein 20 (ECF No. 22) which were served on all parties and which contained notice that any objections to 21 the Findings and Recommendations were to be filed within fourteen days. Plaintiff timely filed 22 objections to the Findings and Recommendations (ECF No. 23), and Defendant filed a reply to 23 Plaintiff’s objections (ECF No. 24). 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 25 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, 26 including Plaintiff’s objections to the Findings and Recommendations, the Court finds the 27 Findings and Recommendations to be supported by the record and by proper analysis. The Court 28 will therefore adopt the Findings and Recommendations with a single modification: the dismissal 1 Dockets.Justia.com 1 of Plaintiff’s first amended complaint is without prejudice. Contrary to the Findings and 2 Recommendations, the Court finds that the First Amended Complaint could be saved by further 3 amendment. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Findings and Recommendations filed September 21, 2015 (ECF No. 22) are 6 ADOPTED AS MODIFIED; 7 2. Defendant’s Motion to Dismiss (ECF No. 16) is GRANTED; and 8 3. Plaintiff’s First Amended Complaint (ECF No. 15) is DISMISSED without prejudice. 9 Plaintiff is granted twenty (20) days from the date that this order is electronically filed to file a 10 Second Amended Complaint that cures the deficiencies identified in the Findings and 11 Recommendations. Failure to timely file a Second Amended Complaint in compliance with this 12 Order will result in this action being dismissed for failure to state a claim. 13 14 IT IS SO ORDERED. Dated: November 10, 2015 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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