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Lugo v. Ramirez

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 25, 2008

RUSTY LUGO, PLAINTIFF,
v.
RAMIREZ, ET AL., DEFENDANTS.

FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On April 23, 2008, the court dismissed plaintiff's complaint and ordered plaintiff to file an amended complaint in order to cure deficiencies with his complaint. Before the court is plaintiff's amended complaint.

In his amended complaint, plaintiff alleges that on January 10, 2008, he found a metal weapon in his cell and that correctional officers Ramirez, McNalley, Echevarria, Smith and Bowenan placed the weapon in his cell. Plaintiff filed a grievance and has requested an investigation of the officers for "conspiracy to commit fraud and deliberate indifferance [sic] and malfeasanc[e] misconduce [sic]." (Am. Compl., Attach. at 1.)

In this court's April 23 order, plaintiff was advised that the court is required to screen complaints and that sufficient facts must be alleged in support of a claim. The court also advised plaintiff regarding the applicable legal standards for stating a cognizable conspiracy claim. Plaintiff's amended complaint continues to suffer from the defects noted previously by the court. Plaintiff has still not provided any factual allegations demonstrating that there was an agreement by the defendants to violation plaintiff's constitutional rights. See Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989) (holding that conclusory allegations about a conspiracy by defendants do not support a claim for violation of plaintiff's constitutional rights under § 1983).

In light of the nature of the deficiencies noted with respect to his claims and considering that plaintiff has previously been granted leave to amend his complaint without success, the undersigned finds that granting further leave to amend would be futile. Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002).

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for plaintiff's failure to state a cognizable claim.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20080825

© 1992-2008 VersusLaw Inc.



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