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Martin v. McNut

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


October 13, 2009

KEVIN DALE MARTIN, PLAINTIFF,
v.
MCNUT, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff's original complaint was found to be deficient in that Plaintiff failed to plead with any specificity what his claims were. The court set forth the requirements for stating a claim for a violation of his Eighth Amendment rights, and also informed Plaintiff of the need to allege an actual connection or link between the actions of the named defendants and the alleged deprivations. The court found the deficiencies may be cured by amending the complaint, so the complaint was dismissed with leave to amend.

Plaintiff filed an amended complaint, which was also dismissed for violating the Federal Rules of Civil Procedure, Rules 8, 10, and 11. His amended complaint failed to contain a short and plain statement of his claim showing that he is entitled to relief, failed to state his claims in separately numbered paragraphs in such a way that the court could understand them, and he failed to sign his complaint. In order to assist Plaintiff in filing a complaint which would survive screening, the court provided Plaintiff a copy of a Civil Rights Complaint form, and allowed him another opportunity to file an amended complaint. Plaintiff was warned that failure to file an amended complaint that meets the requirements of the Federal Rules of Civil Procedure may result in the dismissal of this action for lack of prosecution and failure to comply with court rules and orders.

Instead of using the complaint form the court provided, Plaintiff sent the court a one-page document, presumably his attempt to file a second amended complaint. The contents of this presumed second amended complaint is as follows:

Mr McNut was supost to of gone through State and Federal traning programs . . Which makes HIM awhere of the damage the Poison he is spraing could do to a Human or Animal . . So he was very awere of what could happen when he is spraying Weed Killer . . Theres no other reason rather then to inflict or cuase harm . . He new what could happen . . They train there people how and when to spray . . . It says right on the lable not to Expose people and or Animals . . It,s Poison . . So it had to be with deliberate intent to cause Me pain and or sufering and or Death . . . And sense He was working under the color of the State of California . . .

(Doc. 18, errors in original).

For all of the reasons stated in the court's previous orders (Docs. 14, 17), the presumed second amended complaint is insufficient. Although this presumed complaint is signed, Plaintiff fails to set forth a sufficient plain and simple statement of his claims, fails to set forth what relief is requested, fails to link the defendants to specific actions he claims violated his constitutional rights, and makes only vague and conclusory allegations.

Plaintiff was provided the proper form to use in order to file an amended complaint that would be sufficient. He was instructed as to what was necessary to allege that his Eighth Amendment rights were violated. He was also directed to the Federal Rules of Civil Procedure, especially Rules 8, 10, and 11, in order to assist him in filing a complaint which complied with those rules.*fn1 He chose not to use the form complaint he was provided, and the statement filed instead is again insufficient. It appears to the court that Plaintiff is either unable or unwilling to comply with the court's order for a complaint that complies with the Federal Rules of Civil Procedure and states a claim.

Accordingly, Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action should not be dismissed for his failure to file an amended complaint which states a claim, complies with the court's previous orders, and complies with the Federal Rules of Civil Procedure. Filing an amended complaint which complies with those provisions will be considered a sufficient response. Plaintiff is warned that failure to respond to this order may result in dismissal of the action for the reasons outlined above, as well as for failure to prosecute and comply with court rules and orders. See Local Rule 11-110.

IT IS SO ORDERED.


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