Bragg v. Devos

Opinion

1 WO 2 3 4 5

9 Samantha Elizabeth Bragg, No. CV-20-00622-PHX-ESW

10 Plaintiff, REPORT AND RECOMMENDATION 11 v.

12 Betsy DeVos,

13 Defendant. 14 15 TO THE HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES 16 DISTRICT COURT JUDGE: 17 On January 27, 2020, Plaintiff filed a pro se Complaint, arising from a ten-day 18 suspension without pay to Plaintiff, after eight days of classroom instruction, for not 19 attending a ‘fitness for duty,’ eight-hour neuropsychiatric exam on September 18, 2013. 20 (Doc. 1). The case thereafter was transferred to the United States District Court for the 21 District of Arizona. (Doc. 3). The Plaintiff consented to Magistrate Judge jurisdiction. 22 (Doc. 10). The Court screened the Plaintiff’s Complaint pursuant to 28 U.S.C. § 23 1915(e)(2). (Doc. 11). The Court found that the Plaintiff (i) had not satisfied the pleading 24 requirements of the Federal Rules of Civil Procedure and (ii) failed to state a cause of 25 action. (Id. at 1). The Court dismissed Plaintiff’s Complaint with permission to file a First 26 Amended Complaint no later than August 21, 2020. (Id. at 6). The Court further ordered 27 that “if Plaintiff does not file a First Amended Complaint by August 21, 2020, the Court 28 will dismiss this action with prejudice.” (Id.). 1 Plaintiff has failed to file a First Amended Complaint correcting the deficiencies 2 noted by the Court in its screening order, and the time to do so has passed. As of the date 3 of filing this Report and Recommendation, Plaintiff has not filed any First Amended 4 Complaint as ordered. The Magistrate Judge will recommend that the Court dismiss Plaintiff's Complaint with prejudice and instruct the Clerk of Court to terminate the file. 6 For the reasons set forth herein, 7 IT IS RECOMMENDED that the Court dismiss Plaintiff's Complaint (Doc. 1) 8 with prejudice and instruct the Clerk of Court to terminate the file. 9 This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a) (1) should not be filed until entry of the District Court’s judgment. The parties shall have fourteen 12 days from the date of service of a copy of this recommendation within which to file specific 13 written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. 14 Thereafter, the parties have fourteen days within which to file a response to the objections. 15 Failure to file timely objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 18 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 22 Dated this 27th day of August, 2020. 23 Cau) 25 Honorable Eileen S. Willett 6 United States Magistrate Judge 27 28

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