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Dismuke v. Rodriguez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


January 13, 2009

MELVIN DISMUKE, PLAINTIFF,
v.
OFFICER R. RODRIGUEZ, J. COUGHLIN, S. PALOMARES, AND PALIMANO, DEFENDANTS.

The opinion of the court was delivered by: Edward F. Shea United States District Judge

ORDER REQUIRING PLAINTIFF TO FILE AN AMENDED COMPLAINT

Before the Court is pro se state prisoner Plaintiff Melvin Dismuke's Complaint, alleging a violation of the Eighth Amendment under 42 U.S.C. § 1983. (Ct. Rec. 1.) Under the Prisoner Litigation Reform Act of 1995, the Court is required to screen prisoner complaints seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Claims that are legally frivolous or malicious, claims that fail to state a claim upon which relief may be granted, and claims that seek monetary relief from a defendant who is immune from such relief are properly dismissed. Id. §§ 1915A(b)(1), (2) & 1915(e)(2). After review, the Court finds the complaint states a plausible 42 U.S.C. § 1983 claim based on a violation of the Eighth Amendment's cruel and unusual punishment clause. However, the complaint is deficient because it is unsigned. See FED. R. CIV. P. 11(a) (requiring every pleading to be signed by either the attorney of record or the party personally if the party is unrepresented). Accordingly, Plaintiff shall file a signed amended complaint no later than sixty (60) days from the date of this Order. The Court cautions Plaintiff that failure to comply with this Order may result in dismissal of this action. Pursuant to 28 U.S.C. § 1915(g), a prisoner who brings three (3) or more civil actions or appeals that are dismissed because they are legally frivolous, malicious, or fail to state a claim, will be precluded from bringing any other civil action or appeal in forma pauperis "unless the prisoner is under imminent danger of serious physical injury."

Accordingly, IT IS HEREBY ORDERED: Plaintiff shall file a signed amended complaint, which shall operate as a complete substitute for previously submitted complaint, no later than sixty (60) days from the date of this Order.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward a copy to Plaintiff, along with a copy of the Local Rules for the Eastern District of California.

20090113

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