Thomas v. Stanislaus County et al

Filing 13

ORDER Dismissing Due Process Claim Following Receipt of Plaintiff's Notice of Willingness to Proceed only on Cognizable Exercise Claim signed by Chief Judge Anthony W. Ishii on 07/08/2011. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DERRICK J. THOMAS, 10 11 12 CASE NO. 1:09-cv-02015-AWI-SKO PC Plaintiff, ORDER DISMISSING DUE PROCESS CLAIM FOLLOWING RECEIPT OF PLAINTIFF’S NOTICE OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EXERCISE CLAIM v. STANISLAUS COUNTY, et al., (Docs. 9, 11, and 12) 13 Defendants. 14 / 15 16 Plaintiff Derrick J. Thomas, a pretrial detainee proceeding pro se and in forma pauperis, filed 17 this civil rights action pursuant to 42 U.S.C. § 1983 on November 17, 2009. On February 1, 2011, 18 the Court dismissed Plaintiff’s complaint, with leave to amend, for failure to state a claim. (Doc. 19 8.) Plaintiff filed an amended complaint on March 3, 2011, and on June 14, 2011, the Court issued 20 an order finding that Plaintiff stated a cognizable claim arising out of the denial of adequate outdoor 21 exercise. (Docs. 9, 11.) However, Plaintiff’s claim arising out of his placement in solitary 22 confinement was not cognizable, and the Court ordered Plaintiff to either file a second amended 23 complaint or notify the Court of his willingness to proceed only on his exercise claim. (Doc. 11.) 24 On July 7, 2011, Plaintiff filed a notice stating that he is willing to proceed only on the exercise 25 claim. (Doc. 12.) Accordingly, Plaintiff’s non-cognizable claim shall be dismissed and this action 26 shall proceed only on the exercise claim. 27 In his notice, Plaintiff also requests to amend his claim for compensatory and punitive 28 damages, if possible. While Plaintiff may not amend his complaint via his notice because a pleading 1 1 must be complete within itself, Local Rule 220, Plaintiff is not limited to the specific damages 2 amount set forth in his amended complaint, Fed. R. Civ. P. 54(c); Z Channel Ltd. Partnership v. 3 Home Box Office, Inc., 921 F.2d 1338, 1341 (9th Cir. 1991). 4 For the reasons set forth in the screening order filed on June 14, 2011, and in light of 5 Plaintiff’s notice that he is willing to proceed only on his cognizable exercise claim, it is HEREBY 6 ORDERED that: 7 1. This action shall proceed on Plaintiff’s amended complaint, filed on March 3, 2011, 8 against Defendants Stanislaus County Board of Supervisors, Stanislaus County 9 Sheriff’s Department, Sheriff Adam Christianson, Policy Manager Gina Leguria, 10 Captain William Duncan, Lieutenants Ronald Lloyd and Gregg Clifton, and Sergeant 11 M. White on Plaintiff’s due process claim arising out of the denial of adequate 12 outdoor exercise; and 13 2. 14 Plaintiff’s due process claim arising out of his placement in solitary confinement is dismissed for failure to state a claim. 15 16 17 IT IS SO ORDERED. 18 19 Dated: 0m8i78 July 8, 2011 CHIEF UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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