Nelson v. Duncan

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOLITA NELSON, Case No. 1:25-cv-0700 JLT CDB

12 Plaintiff, ORDER ADOPTING IN PART THE 13 v. FINDINGS AND RECOMMENDATIONS, DISMISSING THE ACTION WITHOUT 14 RAYMOND DUNCAN, et al., PREJUDICE, AND DIRECTING THE CLERK OF COURT TO CLOSE THE CASE 15 Defendants. (Doc. 5) 16

17 Lolita Nelson asserts that the defendants—including Raymond Duncan, Sanda Moody, 18 D.A. Office/Prosecutor, Janette Duncan, and Dajion Hill—sent her money to foreign countries; 19 used her identity; committed mail fraud; bought houses, cars and other items in her name; abused 20 their power; and conspired to torment Plaintiff. (Doc. 1 at 3.) Because Plaintiff is proceeding pro 21 se and in forma pauperis, the magistrate judge screened the complaint. (Doc. 3.) The magistrate 22 judge found Plaintiff failed to state any cognizable claims, failed to establish this Court’s subject 23 matter jurisdiction, and did not demonstrate that the Eastern District of California is the 24 appropriate venue. (Id. at 3-6.) The Court granted Plaintiff 21 days to file an amended complaint. 25 (Id. at 7.) 26 After Plaintiff did not file an amended complaint or otherwise respond to the Court’s 27 order, the magistrate judge issued Findings and Recommendations, reiterating the prior findings that Plaintiff failed to state a claim and did not invoke this Court’s jurisdiction. (Doc. 5 at 3-6.) 1 In addition, the magistrate judge found Plaintiff failed to prosecute the action, failed to obey the 2 Court’s order, and failed to comply with the Local Rules. (Id. at 7, 8.) The magistrate judge 3 found terminating sanctions are appropriate after considering the factors identified by the Ninth 4 Circuit in Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988). (Id. 8-9.) The magistrate judge 5 recommended the Court dismiss the matter “with prejudice for Plaintiff’s failure to state a claim 6 upon which relief may be granted and futility of further amendment, or in the alternative, without 7 prejudice for her failure to prosecute this action and to comply with the Court’s orders and Local 8 Rules.” (Id. at 9.) 9 The Court served the Findings and Recommendations on Plaintiff and notified her that 10 any objections were due within 14 days. (Doc. 5 at 10.) The Court advised Plaintiff that the 11 “failure to file any objections within the specified time may result in the waiver of certain rights 12 on appeal.” (Id. at 10, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) 13 Plaintiff did not file objections, and the time to do so has passed. 14 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 15 Having carefully reviewed the matter, the Court concludes the findings that Plaintiff failed to 16 prosecute the action and failed to comply with the Court’s order are supported by the record and 17 proper analysis. However, the magistrate judge did not specify which Local Rule that Plaintiff 18 failed to comply with, and the Court declines to speculate as such. To the extent the magistrate 19 judge refers to Local Rule 110, the rule addresses the authority of the Court to impose sanctions. 20 (See Local Rule 110.) Thus, the Court declines to adopt the finding that Plaintiff also failed to 21 comply with the Local Rules. 22 In addition, the screening findings— that Plaintiff failed to state a claim that invokes this 23 Court’s jurisdiction and does not show the Eastern District is the proper venue—are supported by 24 the record and proper analysis. However, dismissal with prejudice is not appropriate given the 25 initial determination that Plaintiff fails to invoke the Court’s jurisdiction. See Kelly v. Fleetwood 26 Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (“because the district court lacked subject 27 matter jurisdiction, the claims should have been dismissed without prejudice”); Missouri ex rel. 1 | “is without prejudice”). Consequently, modification to dismissal without prejudice is necessary. 2 Based upon the foregoing, the Court ORDERS: 3 1. The Findings and Recommendations dated on July 15, 2025 (Doc. 5) are 4 ADOPTED in part. 5 2. Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice for failure to state 6 a claim that invokes this Court’s jurisdiction, failure to obey the Court’s order, and 7 failure to prosecute. 8 3. The Clerk of Court is directed to CLOSE this case. 9 10 IT IS SO ORDERED.

1, | Dated: _ August 7, 2025 Cerin | Tower TED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28