-EFB (PS) Smith v. United States, No. 2:2011cv01577 - Document 6 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS, recommending that plaintiff's 5 First Amended Complaint be dismissed without leave to amend and Clerk be directed to close this case, signed by Magistrate Judge Edmund F. Brennan on 7/27/2011. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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-EFB (PS) Smith v. United States Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 WILLIAM DALE SMITH, JR., Plaintiff, 11 vs. 12 13 No. CIV 11-1577 KJM EFB PS UNITED STATES OF AMERICA, Defendant. 14 FINDINGS AND RECOMMENDATIONS / 15 16 This case, in which plaintiff is proceeding in propria persona, was referred to the 17 undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On July 6, 2011, 18 the undersigned granted plaintiff’s request to proceed in forma pauperis, but dismissed 19 plaintiff’s complaint with leave to amend pursuant to 28 U.S.C. § 1915(e)(2). Dckt. No. 4. The 20 court noted that plaintiff’s original complaint was “nearly incomprehensible,” and that neither 21 plaintiff’s original complaint nor his supplement thereto alleged any cognizable legal theories or 22 any facts in support of a cognizable legal theory. Id. at 3. Accordingly, the court dismissed 23 plaintiff’s complaint, but provided plaintiff with an opportunity to amend his complaint to the 24 extent that he could “allege a cognizable legal theory and sufficient facts in support of that 25 cognizable legal theory.” Id. 26 //// 1 Dockets.Justia.com 1 On July 8, 2011, plaintiff filed an amended complaint. Dckt. No. 5. However, his 2 amended complaint once again fails to allege any cognizable legal theories or any facts in 3 support of a cognizable legal theory. It appears that the gist of plaintiff’s complaint is his claim 4 under 18 U.S.C. § 1512 for witness tampering. However, as the court noted in the July 6 order, 5 “18 U.S.C. § 1512 is a criminal statute that does not provide a private civil right of action.” 6 Dckt. No. 4 at 3. 7 As previously explained to plaintiff, although pro se pleadings are liberally construed, 8 see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be 9 dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief 10 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) 11 (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s 12 obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 13 conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual 14 allegations must be enough to raise a right to relief above the speculative level on the assumption 15 that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate 16 based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to 17 support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 18 Cir. 1990). 19 Because it appears that further amendment would be futile, the court will recommend that 20 this action be dismissed without leave to amend pursuant to 28 U.S.C. § 1915(e)(2). Noll v. 21 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would permit a pro se 22 plaintiff to amend, leave to amend should not be granted where it appears amendment would be 23 futile). 24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. Plaintiff’s amended complaint, Dckt. No. 5, be dismissed without leave to amend; and 26 //// 2 1 2. The Clerk be directed to close this case. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 4 after being served with these findings and recommendations, any party may file written 5 objections with the court and serve a copy on all parties. Such a document should be captioned 6 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 7 within the specified time may waive the right to appeal the District Court’s order. Turner v. 8 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 DATED: July 27, 2011. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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