Lino v. Kellerman et al

Filing 25

ORDER Dismissing Third Amended Complaint. Plaintiff's 23 "Motion for 3 Judge Court" is denied. Plaintiff's Third Amended Complaint is dismissed without prejudice pursuant to FED.R.CIV.P. 8 and 28 U.S.C. §§ 1915(e)(2) (b) and 1915A(b). However, Plaintiff is granted thirty days leave from the date this Order is "Filed" in which to file a Fourth Amended Complaint. Signed by Judge Barry Ted Moskowitz on 5/20/11. (All non-registered users served via U.S. Mail Service. Mailed Plaintiff a form § 1983 complaint. )(jer)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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OWEN LINO,
CDCR #J-45685,

Civil No.

Plaintiff,

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ORDER DISMISSING THIRD
AMENDED COMPLAINT

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vs.

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J. KELLERMAN, et al.;

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Defendants.

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On February 26, 2010, Owen Lino (“Plaintiff”), a state prisoner currently incarcerated

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at Kern Valley State Prison, and proceeding pro se, submitted a civil action pursuant to 42

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U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis (“IFP”). The Court granted

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Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a

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claim pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b.). See Apr. 21, 2010 Order at 4-5.

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Plaintiff was granted leave to file a First Amended Complaint in order to correct the deficiencies

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in pleading noted by the Court. Id. On May 24, 2010, Plaintiff filed his First Amended

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Complaint. Before the Court could conduct a sua sponte screening of Plaintiff’s First Amended

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10cv0449 BTM (JMA)

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Complaint, Plaintiff filed a Motion for Leave to file another Amended Complaint. The Court

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granted Plaintiff’s Motion and Plaintiff filed his Second Amended Complaint on August 16,

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2010. Once again, before the Court could conduct a sua sponte screening of the Second

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Amended Complaint, Plaintiff sought leave to file a Third Amended Complaint which was

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granted by the Court. Plaintiff then sought an extension of time to file his Third Amended

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Complaint. On December 8, 2010, Plaintiff filed his Third Amended Complaint (“TAC”).

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Plaintiff’s TAC is ninety (90) pages long, names forty two (42) defendants, contains

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single spaced writing and appears to allege a different claim against a different defendant on

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each page. It is clear that Plaintiff’s Third Amended Complaint fails to comply with Rule 8.

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Specifically, Rule 8 provides that in order to state a claim for relief in a pleading it must contain

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“a short and plain statement of the grounds for the court’s jurisdiction” and “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(1) & (2).

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Plaintiff’s Third Amended Complaint is rambling and imposes an “unfair burden on litigants

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and judges.” McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996). In its current form,

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Plaintiff’s Third Amended Complaint fails to give defendants fair notice of the claims against

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them. Id. If Plaintiff chooses to file an Amended Complaint, he must comply with Rule 8.

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Because Plaintiff is also incarcerated, he is further cautioned that he must also comply with

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Local Rule 8.2 which provides, in part, that prisoners must use the Court’s form complaints and

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any additional pages are “not to exceed fifteen (15) in number.” S.D. CIVLR 8.2.

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Plaintiff has also filed a “Motion for 3 Judge Court” pursuant to 28 U.S.C. § 2284.

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Plaintiff’s Motion provides no support as to why this action would require a three judge Court

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and the Court can find no allegations in Plaintiff’s Third Amended Complaint that would form

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the basis of a three judge court pursuant to § 2284.
CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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///

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Plaintiff’s “Motion for 3 Judge Court” is DENIED [ECF No. 23].

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2.

Plaintiff’s Third Amended Complaint is DISMISSED without prejudice pursuant

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to FED.R.CIV.P. 8 and 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is

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GRANTED thirty days leave from the date this Order is “Filed” in which to file a Fourth

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Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff’s

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Amended Complaint must be complete in itself without reference to the superseded pleading.

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See S.D. Cal. Civ. L. R. 15.1.

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The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.

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IT IS SO ORDERED.

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DATED: May 20, 2011
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Honorable Barry Ted Moskowitz
United States District Judge

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