Emerson v. New Folsom State Prison

Filing 30

ORDER signed by Magistrate Judge Kendall J. Newman on 02/18/15 ordering the clerk of the court is directed to serve plaintiff with a copy of the court's 08/14/14 order 17 for his review. Within 30 days from the date of this order, plaintiff shall complete the attached notice of amendment and submit it along with an original and 1 copy of plaintiff's amended complaint. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JEFFREY EMERSON, 11 12 13 No. 2:14-cv-01569 TLN KJN P Plaintiff, v. ORDER NEW FOLSOM STATE PRISON, 14 Defendants. 15 16 17 18 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, 19 the court filed an order dismissing the complaint (i) because the Eleventh Amendment barred suit 20 against the sole defendant, New Folsom State Prison, and (ii) because among the remedies 21 plaintiff sought was release from prison, a form of relief unavailable in a civil rights action 22 brought under Section 1983. (ECF No. 17.) The court nonetheless granted plaintiff leave to file 23 an amended complaint within thirty days. (Id.) 24 Plaintiff failed to file an amended complaint. As a result, on October 17, 2014, the court 25 issued findings and recommendations recommending that the action be dismissed without 26 prejudice. (ECF No. 22.) Plaintiff was given fourteen days to file objections thereto. (Id.) On 27 October 30, 2014, plaintiff filed objections consisting of a single handwritten page, reading as 28 follows: 1 1 2 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.) 3 4 Enclosed with this statement was a copy of the October 17, 2014 findings and recommendations. 5 (Id. at 4-5.) Out of an abundance of caution, on November 17, 2014, the court issued an order 6 granting plaintiff thirty additional days to file an amended complaint. (ECF No. 26.) 7 On December 3, 2014, plaintiff filed a notice explaining that he would be unable to file an 8 amended complaint within thirty days; attached to this notice was a memorandum, dated 9 December 1, 2014, on the letterhead of California Correctional Health Care Services. (ECF 10 No. 27 at 2.) The memorandum is written by one M. DiCiro, whose title is listed as “Senior 11 Psychologist Supervisor, Crisis Treatment Center, California State Prison, Sacramento.” (Id.) 12 The memorandum provides that plaintiff was involuntarily admitted to the Correctional 13 Treatment Center on November 4, 2014, that he is being compulsorily medicated, and that he 14 “ha[s] not been provided regular access to writing implements and incoming mail due to the 15 inherent restrictions of the environment . . . and not permitted access to the law library throughout 16 [his] stay.” (Id. at 2.) 17 In light of the foregoing, the court will provide plaintiff with an additional 30 days to file 18 an amended complaint that meets the requirements for pleading under 42 U.S.C. § 1983. No 19 additional extension of time will be given unless plaintiff provides further documentation from 20 prison staff setting forth the reason(s) that he has been unable to timely respond to this order. 21 In accordance with the foregoing, IT IS HEREBY ORDERED that: 22 1. The Clerk of the Court is directed to serve plaintiff with a copy of the court’s August 23 24 25 14, 2014 order (ECF No. 17) for his review. 2. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court: 26 a. The completed Notice of Amendment, and 27 b. An original and one copy of plaintiff’s amended complaint. 28 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 2 1 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 2 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 3 Failure to file an amended complaint in accordance with this order will result in the dismissal of 4 this action. 5 Dated: February 18, 2015 6 7 /emer1569.14.new.2nd 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JEFFREY EMERSON, 11 12 13 No. 2:14-cv-1569 TLN KJN P Plaintiff, v. NOTICE OF AMENDMENT NEW FOLSOM STATE PRISON, 14 Defendants. 15 16 17 Plaintiff hereby submits the following document in compliance with the court's order filed______________. _____________ 18 19 20 21 Amended Complaint DATED: ________________________________ Plaintiff 22 23 24 25 26 27 28 4

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