Opinion
Case No. CV 10-6964-CJC (DTB)
04-30-2013
VERNON D. CARROLL, Plaintiff, v. CORRECTIONAL OFFICER S. READ, et al., Defendants.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Complaint, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. No objections to the Report and Recommendation have been filed herein. The Court concurs with and accepts the findings, conclusions and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that defendants' Motion to Dismiss plaintiff's SAC for failure to comply with Fed. R. Civ. P. 8 and failure to state a claim upon which relief can be granted is granted with leave to amend; that defendants' Motion to Dismiss plaintiff's SAC based on qualified immunity is denied without prejudice; and plaintiff is ordered, if he still desires to pursue this action, to file a Third Amended Complaint remedying the deficiencies discussed in the Report and Recommendation within thirty (30) days of the service of this Order.
If plaintiff chooses to file a Third Amended Complaint, it should bear the docket number assigned in this case; be labeled "Third Amended Complaint"; and be complete in and of itself without reference to the original Complaint, the First Amended Complaint, the Second Amended Complaint, or any other pleading, attachment, or document. The Clerk is directed to send plaintiff a blank Central District civil rights complaint form, which plaintiff is encouraged to utilize.
Plaintiff is admonished that, if he fails to timely file a Third Amended Complaint within the time allotted, the same can be construed as a failure to prosecute the action and, therefore, can be a basis for dismissal.
____________________
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE
___________________
FULL NAME
___________________
COMMITTED NAME (if different)
________________________________
FULL ADDRESS INCLUDING NAME OF INSTITUTION
___________________
PRISON NUMBER (if applicable)
PLAINTIFF,
v.
DEFENDANT(S).
CASE NUMBER
____________________
To be supplied by the Clerk
CIVIL RIGHTS COMPLAINT
PURSUANT TO (Check one)
[ ] 42 U.S.C. § 1983
[ ] Bivens v. Six Unknown Agents 403 U.S. 388 (1971)
A. PREVIOUS LAWSUITS
1. Have you brought any other lawsuits in a federal court while a prisoner: [ ] Yes [ ] No
2. If your answer to "1." is yes, how many? __________
Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an attached piece of paper using the same outline.)
a. Parties to this previous lawsuit:
Plaintiff __________b. Court __________
Defendants __________
c. Docket or case number __________
d. Name of judge to whom case was assigned __________
e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it appealed? Is it still pending?) __________
f. Issues raised: __________
g. Approximate date of filing lawsuit: __________
h. Approximate date of disposition __________
B. EXHAUSTION OF ADMINISTRATIVE REMEDIES
1. Is there a grievance procedure available at the institution where the events relating to your current complaint occurred? [ ] Yes [ ] No
2. Have you filed a grievance concerning the facts relating to your current complaint? [ ] Yes [ ] No
If your answer is no, explain why not __________
3. Is the grievance procedure completed? [ ] Yes [ ] No
If your answer is no, explain why not __________
4. Please attach copies of papers related to the grievance procedure.
C. JURISDICTION
This complaint alleges that the civil rights of plaintiff__________ (print plaintiffs name)
who presently resides at __________, (mailing address or place of confinement)
were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at __________ (institution/city where violation occurred) on (date or dates) __________, (Claim I) __________, (Claim II) __________. (Claim III)
NOTE: You need not name more than one defendant or allege more than one claim. If you are naming more than five (5) defendants, make a copy of this page to provide the information for additional defendants.
1. Defendant __________ (full name of first defendant) resides or works at
______________________________
(full address of first defendant)
______________________________
(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law:
____________________
2. Defendant __________ (full name of first defendant) resides or works at
______________________________
(full address of first defendant)
______________________________
(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law:
3. Defendant __________ (full name of first defendant) resides or works at
______________________________
(full address of first defendant)
______________________________
(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law:
____________________
4. Defendant __________ (full name of first defendant) resides or works at
______________________________
(full address of first defendant)
______________________________
(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law:
____________________
5. Defendant __________ (full name of first defendant) resides or works at
______________________________
(full address of first defendant)
______________________________
(defendant's position and title, if any)
The defendant is sued in his/her (Check one or both): [ ] individual [ ] official capacity.
Explain how this defendant was acting under color of law:
____________________ D. CLAIMS
If there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same outline.
CLAIM I
The following civil right has been violated: ____________________ Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each DEFENDANT (by name) did to violate your right. ____________________
E. REQUEST FOR RELIEF
I believe that I am entitled to the following specific relief: ____________________
____________________
(Signature of Plaintiff)