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Frank Gallardo v. M. Cate

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


May 5, 2011

FRANK GALLARDO, PLAINTIFF,
v.
M. CATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel. On May 28, 2010 plaintiff filed a consent to proceed before the undersigned. By order filed March 29, 2011, plaintiff's amended complaint was dismissed for failure to state a claim upon which relief can be granted. Plaintiff was instructed how to cure the deficiencies in his pleadings and given thirty days within which to file a second amended complaint. Plaintiff was warned that failure to file a second amended complaint which complies with all of the terms of the March 29, 2011 order would result in dismissal.

On April 29, 2011, plaintiff file a document titled "second amended complaint." However, there is no material difference between the content of the "second amended complaint" and plaintiff's amended complaint. In light of this, and because giving plaintiff leave to file a third amended complaint appears futile, plaintiff's second amended complaint will be dismissed for failure to state a claim upon which relief can be granted and this case will be closed.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's second amended complaint is dismissed for failure to state a claim upon which relief can be granted; and

2. This case is closed.

20110505

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