McDaniel v. Fairfield Police Department et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 2/13/2012 ORDERING that plaintiff is GRANTED 21 days in which to file an amended complaint that complies with the court's 12/2/11, order.(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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ANDRE McDANIEL,

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Plaintiff,

No. 2:11-cv-3041 JAM KJN P

vs.
FAIRFIELD POLICE DEPT., et al.,
Defendants.

ORDER
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Plaintiff is a former state prisoner. By order filed December 2, 2011, plaintiff’s

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complaint was dismissed, and plaintiff was granted thirty days in which to file an amended

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complaint. On February 2, 2012, the undersigned issued findings and recommendations based on

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plaintiff’s failure to file an amended complaint. On February 8, 2012, plaintiff filed objections to

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the findings and recommendations. Plaintiff claims his response was delayed based on his effort

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to obtain counsel. Plaintiff states he can now provide the names of the parties involved.

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However, while plaintiff is correct that he needs to name individuals as

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defendants, the court’s December 2, 2011 order provided standards that plaintiff must meet in

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order to state a cognizable civil rights claim against defendants. For example, the CVS

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Pharmacy and the individual pharmacists are not state actors acting under color of state law.

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(Dkt. No. 4 at 4.) Thus, plaintiff cannot state a cognizable civil rights claim against the
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pharmacist. In any event, plaintiff failed to file an amended complaint naming the individuals

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referenced in his objections. Accordingly, the court will not vacate the February 2, 2012 findings

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and recommendations. Rather, plaintiff will be provided one final opportunity to file an

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amended complaint that complies with this court’s December 2, 2011 order. Should plaintiff fail

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to file a timely amended complaint, the February 2, 2012 findings and recommendations will be

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forwarded to the district court for review and adoption.

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Accordingly, IT IS HEREBY ORDERED that plaintiff is granted twenty-one days

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from the date of this order in which to file an amended complaint that complies with the court’s

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December 2, 2011 order. Failure to comply with this order may result in dismissal of this action.

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DATED: February 13, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mcda3041.ext

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