(PC) Suggs v. Marshall et al, No. 2:2010cv00799 - Document 20 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/30/10 recommending that this action be dismissed and this case closed re 1 Prisoner Civil Rights Complaint. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(PC) Suggs v. Marshall et al Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TYSON JOIEL SUGGS, Plaintiff, 11 12 No. CIV S-10-0799 FCD GGH P vs. 13 JOHN MARSHALL, et al., 14 Defendants. / 15 16 17 18 FINDINGS & RECOMMENDATIONS Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks relief pursuant to 42 U.S.C. § 1983. On May 12, 2010, the court issued a screening order where plaintiff’s complaint 19 was dismissed with leave to file an amended complaint within twenty-eight days. The court 20 outlined the deficiencies in plaintiff’s complaint and set forth what would be required in an 21 amended complaint. On July 13, 2010, plaintiff filed a response to the court’s screening order. 22 On August 3, 2010, the court construed plaintiff’s response as an amended complaint and 23 dismissed it with leave to amend. The court noted that plaintiff’s response merely added 24 additional facts but did include the information from the original complaint. The court informed 25 plaintiff that pursuant to Local Rule 220, the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 1 Dockets.Justia.com 1 complaint be complete in itself without reference to any prior pleading. Plaintiff was granted 2 twenty-eight days to file a proper amended complaint. The twenty-eight days have passed and plaintiff has not filed a proper amended 3 4 complaint. To the extent, that plaintiff’s August 10, 2010, letter could be construed as an 5 amended complaint, this action must still be dismissed as plaintiff has failed to cure the 6 deficiencies of his original complaint. Plaintiff alleges that two other inmates attacked him. In order to state a claim under § 1983, a plaintiff must allege that: (1) defendant 7 8 was acting under color of state law at the time the complained of act was committed; and (2) 9 defendant’s conduct deprived plaintiff of rights, privileges or immunities secured by the 10 Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48 11 (1988). The inmates are not proper defendants as there is no evidence that they were 12 13 acting under color of state law. Plaintiff has identified a correctional officer but has repeatedly 14 failed to set forth any viable allegations against him. For all the above reasons, plaintiff’s 15 complaint should be dismissed and this case closed. IT IS HEREBY RECOMMENDED that plaintiff’s action be dismissed and this 16 17 case closed. These findings and recommendations are submitted to the United States District 18 19 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 20 days after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 23 shall be served and filed within fourteen days after service of the objections. The parties are 24 \\\\\ 25 \\\\\ 26 \\\\\ 2 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: September 30, 2010 /s/ Gregory G. Hollows 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 GGH: AB sugg799.dis 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3