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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 FRANCOIS TABI, Case No. 8:20-cv-00323-VBF-JC 11 12 ORDER (1) ACCEPTING FINDINGS,

CONCLUSIONS, AND

13 RECOMMENDATIONS OF U.S. Plaintiff, MAGISTRATE JUDGE; (2) GRANTING 14 MOTION TO DISMISS AND

DISMISSING ORIGINAL COMPLAINT

15 [DKT. 12]; (3) STRIKING v. UNAUTHORIZED FIRST AMENDED 16 COMPLAINT [DKT. 46]; (4) DENYING

MOTION TO DISMISS FIRST

17 AMENDED COMPLAINT AS MOOT [DKT. 51]; (5) DENYING REQUEST TO 18 ENTER DEFAULT [DKT. 37];

REGENTS AND TRUSTEES OF (6) DENYING FIRST MOTION TO

19 SANTA ANA COLLEGE, et al., AMEND [DKT. 36] AND VACATING

HEARING ON, SUBMITTING AND

20 DENYING SECOND MOTION TO

AMEND WITHOUT PREJUDICE [DKT.

21 62]; AND (7) CAUTIONING PLAINTIFF

AGAINST THE FILING OF ABUSIVE

22 Defendants. DOCUMENTS 23 24 The Court has conducted the review required by 28 U.S.C. § 636 and 25 accepts the findings, conclusions and recommendation of the Magistrate Judge 26 reflected in the March 5, 2021 Report and Recommendation of United States 27 Magistrate Judge (“Report and Recommendation”). 28 1 The Court has also reviewed and herein rules on certain of the parties’ other 2 submissions. 3 IT IS HEREBY ORDERED: 4 1. Rancho Santiago Community College District’s Motion to Dismiss 5 (Dkt. No. 12) is granted and 6 (a) Plaintiff’s official capacity claims – other than any claim for 7 prospective injunctive relief – are dismissed without leave to 8 amend; 9 (b) Any official capacity claim for prospective injunctive relief is 10 dismissed with leave to amend; 11 (c) Plaintiff’s individual capacity claims are dismissed with leave 12 to amend; and 13 (d) Plaintiff’s state law claims are dismissed without prejudice. 14 2. Plaintiff’s Motion for Leave to Amend Complaint (Dkt. No. 36) is 15 denied without prejudice to the filing of a First Amended Complaint 16 which comports with the instant Order. 17 3. Plaintiff’s Request for Entry of Default (Dkt. No. 37) is denied. 18 4. Plaintiff’s unauthorized First Amended Complaint (Dkt. 46) is struck 19 from the docket because it was filed without the requisite consent of 20 defendants or leave of Court.1 See Fed. R. Civ. P. 15(a)(1-2); Ready 21 Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) 22 (district courts have inherent power to control their dockets, which 23 includes the power to strike items from the docket); Hayes v. Idaho 24 Corr. Ctr., 812 F. App’x 568, 569 (9th Cir. 2020) (affirming district 25 26 1While the Report and Recommendation recommended granting the Motion to Dismiss 27 with leave to amend as to most of plaintiff’s claims, the Report and Recommendation had not been accepted at the time plaintiff filed the First Amended Complaint and, therefore, it did not 28 constitute “the court’s leave” within the meaning of Rule 15(a)(2). 2 1 court’s decision to strike plaintiff’s amended complaint when plaintiff 2 filed the amended complaint without complying with Fed. R. Civ. P. 3 15(a)(2)). 4 5. Defendants’ Motion to Dismiss the First Amended Complaint (Dkt. 5 No. 51) is denied as moot. 6 6. Plaintiff’s Motion for Leave to File a Second Amended Complaint 7 (Dkt. No. 62) is submitted for decision and the July 20, 2021 hearing 8 thereon is vacated. See Fed. R. Civ. P. Rule 78; Local Rule 7-15. 9 Such motion is denied without prejudice to the filing of a First 10 Amended Complaint which comports with the instant Order. 11 7. Within fourteen (14) days, Plaintiff shall do one of the following: 12 (a) file a First Amended Complaint which cures the defects set 13 forth in the Report and Recommendation;2 14 (b) file a Notice of Dismissal which will result in the voluntary 15 dismissal of this action without prejudice; or 16 (c) file a Notice of Intent to Stand on Complaint, indicating 17 plaintiff’s intent to stand on the Complaint despite the pleading 18 defects set forth in the Report and Recommendation, which 19 20 21 2Any First Amended Complaint must: (a) be labeled “First Amended Complaint”; (b) be 22 complete in and of itself and not refer in any manner to the original Complaint – i.e., it must include all claims on which plaintiff seeks to proceed (Local Rule 15-2); (c) contain a “short and 23 plain” statement of each claim for relief “showing that [plaintiff] is entitled to relief” (Fed. R. 24 Civ. P. 8(a)); (d) make each allegation “simple, concise and direct” and contain factual allegations in clear short, concise, numbered paragraphs, each “limited as far as practicable to a 25 single set of circumstances” (Fed. R. Civ. P. 8(d)(1), 10(b)); (e) set forth clearly the sequence of events giving rise to the claims for relief; (f) reflect which claims are brought against which 26 defendant(s) in which capacity and allege specifically what each defendant did and how that 27 individual’s conduct specifically violated plaintiff’s civil rights; (g) not add defendants or claims that are not related to the claims asserted in the original Complaint or lodged proposed Second 28 Amended Complaint; and (h) name all parties in the caption/title (Fed. R. Civ. P. 10(a)). 3 1 may result in the dismissal of this action in its entirety based 2 upon such defects. 3 8. Plaintiff is cautioned that his failure timely to file a First 4 Amended Complaint, a Notice of Dismissal, or a Notice of Intent 5 to Stand on Complaint may be deemed plaintiff’s admission that 6 amendment is futile, and may result in the dismissal of this action 7 with or without prejudice on the grounds set forth above, on the 8 ground that amendment is futile, for failure diligently to 9 prosecute and/or for failure to comply with the District Judge’s 10 Order. 11 9. Plaintiff is further cautioned that any future submission of 12 abusive documents to the Court may result in sanctions, which 13 could include striking any abusive filing and/or dismissal of this 14 action with prejudice. 15 IT IS FURTHER ORDERED that the Clerk serve copies of this Order on 16 Plaintiff and counsel for Defendants. 17 IT IS SO ORDERED 18 DATED: August 4, 2021 /s/ Valerie Baker Fairbank 19 ________________________________________ 20 HONORABLE VALERIE BAKER FAIRBANK

SENIOR UNITED STATES DISTRICT JUDGE

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