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Machado v. California Dept. of Corrections & Rehabilitation

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 6, 2010

OSCAR MACHADO, PLAINTIFF,
v.
CALIFORNIA DEPT. OF CORRECTIONS & REHABILITATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Christina A. Snyder United States District Judge

ORDER ADOPTING FINAL AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; and ORDER

Pursuant to 28 U.S.C. Section 636(b)(1)(C), the Court has reviewed the Complaint and other papers along with the attached Final Amended Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Final Amended Report and Recommendation.

IT IS HEREBY ORDERED that:

1. The Final Amended Report and Recommendation is approved and adopted.

2. Defendants' Motion to Dismiss is granted in part and denied in part.

3. Plaintiff's excessive force claims against Defendants Romero and Cox are dismissed with leave to amend for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B).

4. Plaintiff's remaining claims are dismissed without leave to amend.

If Plaintiff wishes to pursue this action in this court, he must file a first amended complaint within thirty days of the date this Order Adopting the Final Amended Report and Recommendation is filed. The amended complaint, bearing the number CV 08-7034-CAS (SH), must be a complete and independent document and must not refer to prior pleadings. Plaintiff is cautioned that failure to file a first amended complaint within the time specified by this Order may result in dismissal of the action with prejudice on the grounds stated in the Final Amended Report and Recommendation of the United States Magistrate Judge and/or for failure to prosecute.

In preparing a first amended complaint, Plaintiff must bear in mind the deficiencies of the current pleading, and must assure that they are not repeated. Plaintiff must take particular note of the following guidelines:

1. Plaintiff must set forth the jurisdictional grounds for his claims at the outset of the complaint.

2. The complaint must include only factual allegations directly relevant to Plaintiff's claims, which must be stated in separate, numbered paragraphs (preferably in chronological order), each limited to a single set of circumstances. The facts should be stated in simple, complete sentences. Repetition is to be avoided.

3. The complaint must clearly identify the specific acts on which each claim is based. Insofar as possible, the allegations should include the date, time, place and circumstances of the offending conduct by each defendant, a clear statement of what each defendant did or failed to do, and the damage of injury suffered by Plaintiff as a result of each defendant's conduct.

4. If civil rights violations are claimed, the complaint must specifically set forth the federal constitutional right or rights infringed with respect to each alleged wrongful act or omission.

IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order on the Plaintiff and counsel for Defendants.

20100806

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