IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 5, 2009
JERRY W. BAKER, PLAINTIFF,
SOLANO COUNTY JAIL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Benjamin H. Settle United States District Judge
This matter comes before the Court on Plaintiff's filing of an amended complaint. Dkt. 8.
On June 4, 2008, Magistrate Judge Kimberley J. Mueller issued an order granting Plaintiff's application for leave to proceed in forma pauperis, but informed Plaintiff that he had failed to state a claim upon which relief may be granted. Dkt. 5. Judge Mueller also granted Plaintiff leave to file an amended complaint. Id.
On June 20, 2008, Plaintiff filed an amended complaint. Dkt. 8. However, the amended complaint is nearly identical to Plaintiff's original complaint. Compare Dkt. 1. The amended complaint does not specify any "actual injury" resulting from the denial or delay in services. See Dkt. 5 (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)). Plaintiff does not allege that his state habeas petition was denied because of any delay or because he was unable to attach necessary copies.
On January 22, 2009, this action was reassigned to the undersigned. Dkt. 11. The Court has reviewed the record de novo and agrees with Judge Mueller's opinion that Plaintiff's complaint fails to state a claim upon which relief may be granted. The amended complaint is deficient for the same reasons stated in Judge Mueller's order. See Dkt. 5.
The Court will again grant leave to allow Plaintiff to file another amended complaint. Plaintiff is instructed to refer to Judge Mueller's order which granted him leave to amend the original complaint. See Dkt. 5. Specifically, if Plaintiff chooses to amend the complaint, he must demonstrate how the conditions complained of have resulted in the deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff must show "actual injury" from the denial or delay of services. In addition, the complaint must allege in specific terms how each named defendant is involved.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's amended complaint is dismissed.
2. No later than March 2, 2009, Plaintiff shall file a second amended complaint. Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned to this case and must be labeled "Second Amended Complaint." Failure to file an amended complaint in accordance with this order will result in dismissal of Plaintiff's action.
3. The Clerk of the Court is directed to send Plaintiff a copy of the form for a civil rights action by a prisoner.
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