(PC) Geyer v. Ferrara

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 JONATHAN GEYER, No. 2:17-cv-0502 KJM AC P 12 Plaintiff, 13 v. ORDER 14 THOMAS A. FERRARA, et al., 15 Defendants. — 16 — 17 Plaintiff, who was an inmate at Solano County Jail, proceeding pro se, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983 . The matter was referred to a United States 19 Magistrate Judge as provided by 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 20 On August 30, 2019, the magistrate judge filed findings and recommendations, which 21 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 22 and recommendations were to be filed within twenty-one days. ECF No. 7. Plaintiff has not filed 23 objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United 25 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 26 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations 27 of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] 28 ///// 1 court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 2 supported by the record and by the proper analysis, except for the finding that amendment to cure 3 plaintiff’s lack of standing would be futile. ECF No. 7 at 5. Based on the facts alleged in the 4 complaint, it is not entirely impossible that plaintiff could amend his complaint to show there is a 5 “credible threat of harm” to himself that is “real and imminent.” Krottner v. Starbucks Corp., 628 6 F.3d 1139, 1142 (9th Cir. 2010) (citing, inter alia, City of Los Angeles v. Lyons, 461 U.S. 95 , 102 7 (1983) (citations omitted). Accordingly, amendment is not futile, and plaintiff is granted leave to 8 amend his complaint, if he is able. Breier v. N. Cal. Bowling Proprietors’ Ass’n, 316 F.2d 787 , 9 789 (9th Cir. 1963) (“Leave to amend should be granted ‘if it appears at all possible that the 10 plaintiff can correct the defect.’”) (citation omitted). 11 Accordingly, it is hereby ORDERED: 12 1. The findings and recommendations filed August 30, 2019 (ECF No. 7), are 13 adopted, with the exception noted above. 14 2. The complaint is DISMISSED with leave to amend pursuant to 28 U.S.C. 15 § 1915A(b). 16 DATED: November 6, 2019. — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —