Opinion
CASE NO. 1:10-cv-00153-SMS PC
10-14-2011
BRIAN TURNER, Plaintiff, v. FRESNO COUNTY JAIL, et al., Defendants.
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO STATE A CLAIM
(ECF No. 13)
ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G)
Plaintiff Brian Turner ("Plaintiff") is a former prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint was screened and dismissed, with leave to amend, for failure to state a claim on October 13, 2010. (ECF No. 11.) On November 15, 2010, Plaintiff filed a first amended complaint. (ECF No. 13.) Plaintiff's first amended complaint fails to name any defendants, set forth any factual allegations, or state any relief requested. To state a claim for relief a complaint must contain "a short plain statement of the claim" and "a demand for the relief sought." Fed. R. Civ. P. 8(a).
Plaintiff's amended complaint fails to state a claim upon which relief may be granted under section 1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend 'shall be freely given when justice so requires,'" Fed. R. Civ. P. 15(a), and "[l]eave to amend should be granted if it appears at all possible that the plaintiff can correct the defect," Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal citations omitted). However, Plaintiff has been given an opportunity to amend his complaint, with direction from the Court, and has failed to correct the deficiencies found. Therefore leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F. 2d 1446, 1448-49 (9th Cir. 1987).
Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is HEREBY DISMISSED, without prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted under section 1983, and the Clerk's Office shall enter judgment. This dismissal is subject to the "three-strikes" provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-15620, 2011 WL 4436248, at *4 (9th Cir. Sept. 26, 2011). IT IS SO ORDERED.
Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE