Chappell v. Duc et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 6/13/2011 VACATING the 13 findings and recommendations; pltf is provided 21 days to file an amended cmplt. No extensions will be granted. (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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REX CHAPPELL,
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Plaintiff,
No. CIV S-10-2676 KJM GGH P
Defendants.
ORDER
vs.
DUC, et al.,
/
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42
U.S.C. § 1983 and is proceeding in forma pauperis.
The undersigned screened plaintiff’s original complaint on December 14, 2010,
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and dismissed it with leave to amend within twenty-eight days. The undersigned noted the
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deficiencies of plaintiff’s complaint and described how plaintiff could overcome these
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deficiencies in an amended complaint. On January 11, 2011, plaintiff was granted a forty-five
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day extension of time to file his amended complaint. The forty-five day period expired and
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plaintiff never submitted an amended complaint or contacted the court. On March 21, 2011, the
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undersigned issued findings and recommendations that this action be dismissed.
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On April 11, 2011, plaintiff filed objections and indicated he was without his
property and has since received his property back. The undersigned would normally have
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allowed plaintiff an opportunity to file an amended complaint. However, plaintiff stated that he
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had reviewed the original complaint and felt there was no way to improve it and would not file
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an amended complaint. Plaintiff stated he should not have to amend and if the court insists, then
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it was a matter for the Ninth Circuit.
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As a result, on April 26, 2011, the undersigned recommended that this case be
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dismissed for the reasons stated in the first screening order and as plaintiff refused to file an
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amended complaint. On May 12, 2011, plaintiff filed objections, though it is not entirely clear
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who wrote the objections and if it is the same person who has written the prior filings for this
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case. The objections state that plaintiff should not have to file an amended complaint, but if
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required he will comply. The objections also say that even though plaintiff has filed nearly 16
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actions, they have been filed by many other inmates as plaintiff pays others to do his work.
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Apparently, plaintiff is prescribed a lot of psychotropic medication and according to the
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objections is not able to file anything. While it may be common practice for inmates to aid one
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another, it is not clear if plaintiff’s best interests are being considered.
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Nevertheless, and out of an abundance of caution, plaintiff will be provided 21
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days to file an amended complaint.1 No extensions will be granted. Failure to file an amended
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complaint will result in a recommendation that this action be dismissed.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The April 26, 2011, findings and recommendations (Doc. 13) are vacated;
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While the objections could perhaps be construed as an amended complaint, it was not
clear if that was plaintiff’s intention based on many of the statements made.
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2. Plaintiff will be provided 21 days to file an amended complaint. No extensions
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will be granted. Failure to file an amended complaint will result in a recommendation that this
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action be dismissed.
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DATED: June 13, 2011
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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
chap2676.amnd
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