Emerson v. New Folsom State Prison

Filing 26

ORDER signed by Magistrate Judge Kendall J. Newman on 11/17/14 ORDERING that the October 17, 2014 findings and recommendations are vacated; The Clerk of the Court is directed to serve plaintiff with a copy of the courts August 14, 2014 order [17 ] for his review; and within 30 days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court: The completed Notice of Amendment; and an original and one copy of the Amended Complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY EMERSON,

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No. 2:14-cv-01569 TLN KJN P

Plaintiff,
v.

ORDER

NEW FOLSOM STATE PRISON,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel. He seeks relief pursuant to 42
U.S.C. § 1983.
On July 2, 2014, plaintiff filed his initial complaint. (ECF No. 1.) On August 14, 2014,

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the court filed an order dismissing the complaint (i) because the Eleventh Amendment barred suit

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against the sole defendant, New Folsom State Prison, and (ii) because among the remedies

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plaintiff sought was release from prison, a form of relief unavailable in a civil rights action

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brought under Section 1983. (ECF No. 17.) The court nonetheless granted plaintiff leave to file

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an amended complaint within 30 days. (Id.)

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Plaintiff failed to file an amended complaint. As a result, on October 17, 2014, the court

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issued findings and recommendations recommending that the action be dismissed without

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prejudice. (ECF No. 22.) Plaintiff was given fourteen days to file objections thereto. (Id.) On

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October 30, 2014, plaintiff filed objections consisting of a single handwritten page, reading as
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follows:

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MAGISTRATE JUDGE KENDALL J. NEWMAN.
ALL IS WELL.
OBVIOUSLY YOU DIDN’T READ MY 1983 OR YOU WOULDN’T OF SENT
THIS I REALIZE YOU MADE A MISTAKE CORRECT IT. (ECF No. 24 at 1.)

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Enclosed with this statement is a copy of the October 17, 2014 findings and recommendations.

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(Id. at 4-5.)

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Contrary to plaintiff’s assertions, when the court issued the August 14, 2014 order, it had

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carefully reviewed the complaint and determined that plaintiff had therein failed to state a claim

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for relief. That order set forth the requirements for a properly-framed complaint. It was plaintiff’s

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failure to timely file an amended complaint that triggered the October 17, 2014 findings and

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recommendations.

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Plaintiff will be given another opportunity to file an amended complaint that meets the

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requirements for pleading under 42 U.S.C. § 1983. Accordingly, the court will vacate the

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October 17, 2014 findings and recommendations and give plaintiff an additional 30 days to file an

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amended complaint.

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In accordance with the foregoing, IT IS HEREBY ORDERED that:

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1. The October 17, 2014 findings and recommendations are vacated;

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2. The Clerk of the Court is directed to serve plaintiff with a copy of the court’s August

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14, 2014 order (ECF No. 17) for his review; and

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3. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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Dated: November 17, 2014

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emer1569.14.new

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY EMERSON,

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No. 2:14-cv-1569 TLN KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

NEW FOLSOM STATE PRISON,

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Defendant.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
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Amended Complaint

DATED:

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________________________________
Plaintiff

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