Silva v. Lewis County Prosecutor's Office

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:24-cv-05504-TMC-GJL 11 Plaintiff, v. REPORT AND RECOMMENDATION 12 LEWIS COUNTY PROSECUTOR'S NOTING DATE: October 8, 2024 14 Defendant.

15 The District Court has referred this prisoner civil rights action to United States Magistrate 16 Judge Grady J. Leupold. After being advised of the pleading deficiencies in his initial Complaint 17 (Dkts. 1-1, 4), Plaintiff Mark Allen Silva, proceeding pro se and in forma pauperis, filed an 18 Amended Complaint (Dkt. 5). 19 In screening the Amended Complaint, the Court found that the following pleading 20 deficiencies remained: “Plaintiff has failed to name a proper defendant for his claim, he has not 21 put forth sufficient facts to demonstrate liability for either an individual or official capacity 22 claim, and his specific constitutional claims are difficult to decipher and appear nonviable.” Dkt. 23 7 at 8; see also Dkt. 4 (identifying similar deficiencies in initial Complaint). Concluding these 24 deficiencies were not curable, the Court ordered Plaintiff to SHOW CAUSE why this action 1 should not be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(b) and without a 2 second opportunity to amend. Id. at 9; see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) 3 (“A district court should not dismiss a pro se complaint without leave to amend unless it is 4 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”);

5 Swearington v. California Dep't of Corr. & Rehab., 624 F. App’x 956, 959 (9th Cir. 2015) 6 (finding the district court did not abuse its discretion in dismissing without leave to amend where 7 pro se plaintiff failed to cure pleading deficiencies). 8 The show cause deadline has now elapsed with no response received from Plaintiff. 9 Accordingly, the undersigned recommends this action be DISMISSED for failure to state a 10 claim and for failure to comply with a court order. Dismissal on the recommended grounds 11 constitutes a “strike” under 28 U.S.C. § 1915(g). 12 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties 13 shall have fourteen (14) days from service of this report to file written objections. See also Fed. 14 R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

15 de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of 16 those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda 17 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time 18 limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on October 19 8, 2024, as noted in the caption. 20 Dated this 23rd day of September, 2024. 21 A 22 23 Grady J. Leupold United States Magistrate Judge 24