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Derrick J. Thomas v. Stanislaus County

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 8, 2011

DERRICK J. THOMAS,
PLAINTIFF,
v.
STANISLAUS COUNTY, ET AL.,
DEFENDANTS.

ORDER DISMISSING DUE PROCESS CLAIM FOLLOWING RECEIPT OF PLAINTIFF'S NOTICE OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EXERCISE CLAIM (Docs. 9, 11, and 12)

Plaintiff Derrick J. Thomas, a pretrial detainee proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 17, 2009. On February 1, 2011, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim. (Doc. 8.) Plaintiff filed an amended complaint on March 3, 2011, and on June 14, 2011, the Court issued an order finding that Plaintiff stated a cognizable claim arising out of the denial of adequate outdoor exercise. (Docs. 9, 11.) However, Plaintiff's claim arising out of his placement in solitary confinement was not cognizable, and the Court ordered Plaintiff to either file a second amended complaint or notify the Court of his willingness to proceed only on his exercise claim. (Doc. 11.) On July 7, 2011, Plaintiff filed a notice stating that he is willing to proceed only on the exercise claim. (Doc. 12.) Accordingly, Plaintiff's non-cognizable claim shall be dismissed and this action shall proceed only on the exercise claim.

In his notice, Plaintiff also requests to amend his claim for compensatory and punitive damages, if possible. While Plaintiff may not amend his complaint via his notice because a pleading must be complete within itself, Local Rule 220, Plaintiff is not limited to the specific damages amount set forth in his amended complaint, Fed. R. Civ. P. 54(c); Z Channel Ltd. Partnership v. Home Box Office, Inc., 921 F.2d 1338, 1341 (9th Cir. 1991).

For the reasons set forth in the screening order filed on June 14, 2011, and in light of Plaintiff's notice that he is willing to proceed only on his cognizable exercise claim, it is HEREBY ORDERED that:

1. This action shall proceed on Plaintiff's amended complaint, filed on March 3, 2011, against Defendants Stanislaus County Board of Supervisors, Stanislaus County Sheriff's Department, Sheriff Adam Christianson, Policy Manager Gina Leguria, Captain William Duncan, Lieutenants Ronald Lloyd and Gregg Clifton, and Sergeant

M. White on Plaintiff's due process claim arising out of the denial of adequate outdoor exercise; and

2. Plaintiff's due process claim arising out of his placement in solitary confinement is dismissed for failure to state a claim.

IT IS SO ORDERED.

0m8i78

CHIEF UNITED STATES DISTRICT JUDGE

20110708

© 1992-2011 VersusLaw Inc.



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