Gallardo v. Cate, et al

Filing 16

ORDER signed by Magistrate Judge Kendall J. Newman on 5/5/2011 ORDERING that pltf's second amended cmplt is DISMISSED for failure to state a claim; and this case is CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK GALLARDO,

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Plaintiff,

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vs.

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No. CIV S-10-1263 KJN (TEMP) P

M. CATE, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel. On May 28, 2010

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plaintiff filed a consent to proceed before the undersigned. By order filed March 29, 2011,

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plaintiff’s amended complaint was dismissed for failure to state a claim upon which relief can be

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granted. Plaintiff was instructed how to cure the deficiencies in his pleadings and given thirty

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days within which to file a second amended complaint. Plaintiff was warned that failure to file a

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second amended complaint which complies with all of the terms of the March 29, 2011 order

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would result in dismissal.

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On April 29, 2011, plaintiff file a document titled “second amended complaint.”

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However, there is no material difference between the content of the “second amended complaint”

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and plaintiff’s amended complaint. In light of this, and because giving plaintiff leave to file a

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third amended complaint appears futile, plaintiff’s second amended complaint will be dismissed
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for failure to state a claim upon which relief can be granted and this case will be closed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s second amended complaint is dismissed for failure to state a claim

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upon which relief can be granted; and

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2. This case is closed.

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DATED: May 5, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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gall1263.dis

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