IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 20, 2011
MADY CHAN, PLAINTIFF,
COUNTY OF SACRAMENTO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On September 15, 2010, the court denied plaintiff's motions for a temporary restraining order, motion to amend the complaint and several other issues. Currently pending before the court are plaintiff's September 21, 2010, motion for a temporary restraining order (Doc. 56), October 1, 2010, motion for leave to amend (Doc. 57) and October 6, 2010, motion for contempt (Doc. 58). This action continues on claims involving inadequate dental care and violations of plaintiff's ability to practice his religion by not allowing him to conduct Buddhism study classes. These claims arose at Sacramento County Jail.
Motion to Amend
Plaintiff filed the original complaint on July 21, 2009. That complaint was dismissed with leave to amend and plaintiff filed the operative first amended complaint on September 8, 2009. On October 30, 2009, the court dismissed several claims and defendants and ordered service on the County of Sacramento and Chaplain Ortiz for claims of inadequate dental care and violations of plaintiff's ability to practice his religion related to not being allowed to conduct Buddhism study classes. Defendants filed an answer on June 4, 2010.
Plaintiff has filed a motion to amend the complaint with a second amended complaint. Defendants have not filed any opposition. Essentially the second amended complaint contains the same claims as the first amended complaint and adds one claim that defendants confiscated a handmade Buddha statute that plaintiff had been using for worship, in violation of RlUIPA and the First Amendment. Plaintiff has also added several state law causes of action for the pre-existing and new claim and named a few new defendants.
Plaintiff's motion to amend will be granted in part and the October 1, 2010, second amended complaint will be the operative complaint in this case containing the original claims and the new Buddha statue claim. However, no new defendants will be added as plaintiff has failed to identify the actions of the new defendants with sufficient specificity.
Defendants, if they wish, may file a supplemental answer to the second amended complaint within twenty-eight days.
No further amendments to the complaint will be allowed.
Motion for Contempt
Plaintiff alleges that defendants are in violation of the Kaiser consent decree therefore defendants should be held in contempt and plaintiff should be given permanent dental fillings. In essence, plaintiff is seeking the relief he seeks in this case through a motion for contempt, i.e., alleged violation of an order in another case. While the Kaiser order may have applicability, and it may not, the applicability of the order will be decided as part of this case on motion for summary judgment or trial -- not on a motion for contempt.
Motion for Temporary Restraining Order
Within twenty-eight days defendants shall file a reply to the motion for a temporary restraining order solely with respect to the dental claims.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to amend (Doc. 57) is granted in part and the October 1, 2010, second amended complaint will be the operative complaint in this case. Defendants, if they wish, may file a supplemental answer to the second amended complaint within twenty-eight days. No new defendants will be added and no further amendments will be allowed.
2. Plaintiff's motion for contempt (Doc. 58) is denied.
3. Within twenty-eight days, defendants shall file a reply to the motion for a temporary restraining order (Doc. 56) solely with respect to the dental claims.
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