1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER JON ELLIS, No. 2:22-cv-00942 KJM DB PS 12 Plaintiff, 13 v. ORDER 14 COUNTY OF EL DORADO MENTAL

HEALTH DIVISION,

15 16 Defendant. 17 18 Plaintiff is proceeding in this action pro se. The matter was referred to a United States 19 Magistrate Judge as provided by Local Rule 302(c)(21). 20 On February 13, 2023, 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 fourteen days after service of the findings and 23 recommendations. The time for filling objections has expired, and plaintiff has not filed any 24 objections to the findings and recommendations. 25 The court presumes that any findings of fact are correct. See Orand v. United States, 26 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 27 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 28 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 1 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be mostly 2 supported by the record and by the proper analysis. The magistrate judge found plaintiff’s “in 3 forma pauperis application makes the [required] financial showing,” but then recommends that 4 the court deny the application. Findings and Recommendations at 2, ECF No. 12. However, 5 under the in forma pauperis statute, 28 U.S.C. § 1915(a)(1), the plaintiff does not need to pay the 6 fee—and therefore the application should be granted—if the plaintiff shows they are unable to 7 pay the fee. No more is required. Based on the magistrate judge’s factual finding, then, 8 plaintiff’s application to proceed in forma pauperis should be granted. The statute’s provisions 9 regarding screening the complaint do not constrain granting the application. See 28 U.S.C. 10 § 1915(e)(2). Thus, the court grants the application. 11 In addition, although the court agrees with the magistrate judge’s conclusion that the 12 amended complaint does not state a claim for discrimination, see Findings and Recommendations 13 at 5, it disagrees that leave to amend would be futile. “Dismissal of a pro se complaint without 14 leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could 15 not be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (quoting 16 Shucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988)). The court cannot conclude on 17 the current record that leave to amend would be futile. Although plaintiff has not alleged the 18 Behavioral Health Center discriminated against him on the basis of his disability, plaintiff could 19 conceivably add allegations to meet the applicable standard. See Findings and Recommendations 20 at 4–5. Moreover, the previous findings and recommendations that explained why plaintiff’s 21 initial complaint did not state a claim focused on his prior Monell claim, with only a single 22 conclusion addressing his ADA claim. See Prior Findings and Recommendations at 6, ECF 23 No. 5. As a result, the court grants plaintiff a final opportunity to amend his complaint to add 24 sufficient factual allegations to plead his ADA claim, if he is able. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The findings and recommendations filed February 13, 2023 (ECF No. 12) are adopted 27 in part; 28 ///// 1 2. Plaintiffs June 1, 2022 application to proceed in forma pauperis (ECF No. 2) is 2 || granted; 3 3. Plaintiff's December 22, 2022 amended complaint (ECF No. 10) is dismissed with 4 | leave to amend; and 5 4. This action is referred back to the magistrate judge for further pretrial proceedings. 6 || DATED: July 10, 2023. 9 CHIEF ED STATES DISTRICT JUDGE

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