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Dixon v. Gonzales

October 20, 2009

GEMMEL DIXON, PLAINTIFF,
v.
F. GONZALES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER STRIKING DUPLICATIVE FIRST AMENDED COMPLAINT FROM COURT RECORD

(Doc. 14)

FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF FIRST AMENDED COMPLAINT

(Doc. 13)

OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS

Order Striking Duplicative Amended Complaint

On June 2, 2009, the Court received two copies of Plaintiff's amended complaint. (Docs. 13, 14.) Both are dated May 22, 2009 and both have been filed into the Court Record as Plaintiff's First Amended Complaint.

Docket Entry #13 is longer and contains an additional document entitled "Supplemental Claim." It appears to be the most complete of the two documents and is therefore treated as the operative pleading.

To avoid confusion, the amended complaint appearing as Docket Entry #14 is HEREBY ORDERED STRICKEN.

Findings and Recommendations Following Screening of First Amended Complaint

I. Screening Requirement

Plaintiff Gemmel Dixon ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 28, 2009. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949. By order issued May 8, 2009, Plaintiff's complaint was ...


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