Opinion
No. 2:06-cv-00034-JKS-GGH.
March 25, 2008
ORDER
Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On August 10, 2006, the Magistrate Judge filed Findings and Recommendations, which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within twenty days. Plaintiff has filed objections to the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, with particular attention to those portions relevant or pertinent to the objections raised, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
In its May 31, 2006, Order, the Court granted Plaintiff 30 days within which to file an amended complaint curing several deficiencies contained in his complaint and a document entitled "complaint medical indifference." Plaintiff failed to file an amended complaint within the time specified. In his objections Plaintiff claims that he mailed what he terms as a seven-page "answer" to the May 31 Order on June 18, 2006, by delivery to prison officials, addressed to the Court. There is no record that it was ever received by the Clerk's Office. Although he does not append a copy of the pleading he asserts was mailed, Plaintiff does recite the table of contents from that document. From that table of contents the Court is unable to ascertain whether the pleading Plaintiff states was mailed to the Court but not received cures the deficiencies noted in the May 31 Order. A complaint should not be dismissed without leave to amend unless it appears that Plaintiff cannot plead sufficient facts to warrant relief. Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). The Court cannot, based on the record before it, determine with any degree of certainty whether Plaintiff can plead facts sufficient to state a cause of action. Accordingly, under the circumstances of this case the Court will grant Plaintiff leave to file a second amended complaint.
The following guide is provided Plaintiff to follow in drafting his amended complaint:
1. The complaint must —
(a) comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice,
(b) be submitted on the form provided with this order,
(c) bear the docket number assigned to this case, and
(d) be clearly captioned "Second Amended Complaint";
3. For each defendant, name the defendant and describe how that person is personally involved in violating Plaintiff's rights, i.e., specify what act or omission of the defendant violated plaintiff's rights and when that act or omission occurred; and
4. If necessary, attach additional sheets.
Accordingly, IT IS HEREBY ORDERED THAT:
1. The Findings and Recommendations filed August 10, 2006, are adopted to the extent they are not inconsistent with this Order;
2. The Amended Complaint at Docket No. 7, as supplemented by the Complaint Medical Indifference at Docket No. 9, is DISMISSED, without prejudice;
3. Plaintiff is granted until April 21, 2008, to file an amended complaint complying with this Order and the May 31 Order at Docket No. 10;
4. The matter is recommitted to the Magistrate Judge for further proceedings; and
5. The Clerk of the Court is directed to again send Plaintiff the form to be used by a prisoner filing a civil rights action pursuant to 42 U.S.C. § 1983.