UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 25, 2012
GOODRICH, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 17)
ORDER GRANTING IN PART PLAINTIFF'S
MOTION FOR AN EXTENSION OF TIME
(ECF No. 16)
Plaintiff Charles Johnson is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 14, 2012, an order issued dismissing Plaintiff's complaint for failure to state a claim. Plaintiff was granted thirty days in which to file an amended complaint. On April 17, 2012, an order issued granting Plaintiff's first motion for an extension of time to file his amended complaint. On April 23, 2012, Plaintiff filed a motion for a forty five day extension of time to file an amended complaint and a first amended complaint.
While the allegations in the first amended complaint are similar to the allegations in the original complaint, it states that the plaintiff is Thornell Brown. (First Am. Compl. ¶ 4, ECF No. 17.) The rights protected by the Eighth Amendment are personal rights and only the person subject to the violation has standing to bring suit. See Whitmore v. Arkansas, 495 U.S. 149, 160 (1990). "The general rule is that only the person whose [personal] rights were violated can sue to vindicate those rights." Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 369 (9th Cir. 1998). Plaintiff does not have standing to assert the claims of Mr. Brown and therefore, the first amended complaint is dismissed. Since the original complaint alleged that Plaintiff Charles Johnson was the individual involved in these incidents, the Court will grant Plaintiff one final opportunity to file an amended complaint.
Accordingly, IT IS HEREBY ORDERED that:
1. The first amended complaint, filed April 23, 2012, is DISMISSED, with leave to amend, for failure to state a claim;
2. Plaintiff's motion for an extension of time is GRANTED IN PART and Plaintiff shall file a second amended complaint within thirty days from the date of service of this order; and
3. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim.
IT IS SO ORDERED.
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