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17-093 - Smith v. Gonzales

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17-093 - Smith v. Gonzales
February 2, 2018
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REPORT AND RECOMMENDATION. The undersigned RECOMMENDS that the Court GRANT Defendant's Motion to Dismiss 5 and dismiss any claim that Plaintiff asserts under Title VII, 42 U.S.C. § 2000e-2(a), or based upon involuntary servitude. It is further RECOMMENDED that the Court conduct the preliminarily screening required by 28 U.S.C. §§ 1915(e) and 1915A, and pursuant to that screening, dismiss any claim under the Free Exercise Clause of the First Amendment or under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc-5, on grounds that Plaintiff has failed to state a claim upon which relief can be granted. Because these recommended dismissals dispose of all claims apparent from the complaint filed in this action, the Court should DISMISS this action in its entirety and such dismissal should be without leave to amend unless Plaintiff provides a valid basis for the Court to conclude that he has not pled his best case. If the dismissal of this action is without leave to amend, the Court should dismiss the action with prejudice and specify that this dismissal qualifies as a "strike" under 28 U.S.C. § 1915(g). In light of the recommended dismissal, the undersigned directs the Clerk of Court to reassign this case to Senior District Judge Sam R. Cummings in accordance with the Second Amended Special Order No. 3-301. A copy of this Report and Recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this Report and Recommendation must file specific written objections within 14 days after being served with a copy. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the District Court, except upon grounds of plain error. SO ORDERED. (Ordered by Magistrate Judge E. Scott Frost on 2/2/2018) (jmc)
February 26, 2018
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ORDER. It is, therefore, ORDERED that Plaintiff's complaint and all claims alleged therein are DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim. Judgment shall be entered accordingly. Any pending motions are DENIED. (Ordered by Senior Judge Sam R Cummings on 2/26/2018) (jmc)