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Portugal v. Felker

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


June 29, 2009

DANIEL PORTUGAL, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sidney R. Thomas, United States Circuit Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

On January 9, 2009, the Court filed an Order denying Plaintiff's request for a temporary restraining order. The Court also noted that, considering Plaintiff's request as a complaint brought under 42 U.S.C. § 1983, Plaintiff had failed to provide "a short and plain statement of the claim showing the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In addition, the Court noted that Plaintiff was required to give the defendant fair notice of plaintiff's claim and the grounds on which it rests, Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996), and must allege with some degree of particularity overt acts by specific defendants which support the claims, see Jones v. Cmty Dev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir 1984).

Considering Plaintiff's request as a § 1983 Complaint, the Complaint is hereby DISMISSED in light of the deficiencies identified above, with leave to file an amended Complaint on or before July 30, 2009. More specifically, Plaintiff may pursue this action further by filing an original and one copy of a pleading captioned as his First Amended Complaint (1AC), bearing the current case number, on or before July 30, 2009. To withstand another dismissal, the 1AC must correct the deficiencies identified in this Order and must comply with the Federal Rules of Civil Procedure and this Court's Local Rules.

The Court cautions Plaintiff that if he fails to file a timely amended complaint, then this action may be dismissed for failure to prosecute.

IT IS SO ORDERED.

20090629

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