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Rich v. Rodriguez

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


March 9, 2009

ELIJAH RAY RICH, PLAINTIFF,
v.
SERGEANT E. RODRIGUEZ, SERGEANT L. KAISER, C/O V. MURCHINSON. C/O K. BROWN, C/O M. ENOS, DEFENDANTS.

The opinion of the court was delivered by: Robert J. Bryan United States District Judge

ORDER DISMISSING CASE

This matter comes before the court on review of the file. The court has considered the relevant documents and the remainder of the file herein.

On May 5, 2008, plaintiff, who is proceeding in forma pauperis, filed a civil rights action, alleging that defendants subjected him to excessive force. The complaint alleges that, on October 28, 2007, defendant officers searched his cell while he was in a holding cage in cuffs, and that he refused to return to his cell when directed to do so by correctional officers. Dkt. The complaint alleges as follows:

I got on my knees still in cuffs. (By the way I'm here in an ASU (Ad-seg unit.) Sergeant E. Rodriguez opened the cage and began to drag me. Then with the help of his other c/o's they began to lift, pull and drag me to my cell with force. When a detainer is unlawful you have the right to resist and so I did with my eyes closed shut from the pain I was enduring by my arms still cuffed behind my back being yanked & pulled on. My head and neck hit the ground. My right shoulder obtained an abrasion from my body being and getting slammed into the ground. My head sustained no outside injuries only mentally. The physical is now migraines around the clock.

As we got to my cell they threw me into my cell like a dead dog, took an extremely long chain, ran it through the back of my cuffs and through the tray slot (cuffs digging into my wrist while the door was closing) yanked me back into my cell door which my head (the back of my head) slammed against along with my neck, they forcefully pulled my arms through the tray slot (cuffs digging into my wrist)[,] released me from the cuffs as I fell to the floor shaking from having a seizure and no one check on my well being. No 7219 (injury report) was written until two days later which was suppose to be written by an LVN Storey. I begged an R.N. Stormes for a 7219 to be done on October 30th 2007. Lacerations remained on my wrist. No CAT scans, no x-rays and no MRI's have been done on my wrist or body till this day. I sit in pain.

Dkt. 1, at 5. Plaintiff attached to the complaint a Medical Report of Injury or Unusual Occurrence, completed by M. Stormes, R.N.,dated October 30, 2007. The report noted "Abrasion/Scratch" to the right shoulder area, and noted that there were no indentations on the wrists. Dkt. 1.

On January 30, 2009, the court issued an order declining to serve the complaint, identifying deficiencies in the complaint, and directing plaintiff to file an amended complaint not later than February 27, 2009. Dkt. 11. Plaintiff was informed that, if he did not file a timely amended complaint, or if the amended complaint failed to state a claim, the court may dismiss this case without prejudice. Id.

Plaintiff did not timely file an amended complaint or otherwise respond to the court's January 30, 2009 order. Accordingly, the court should dismiss the case for failure to state a claim.

Therefore, it is hereby ORDERED that this case is DISMISSED WITHOUT PREJUDICE for failure to state a claim.. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.

20090309

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