Warfield v. McCough et al

Filing 6

ORDER signed by Magistrate Judge Craig M. Kellison on 9/19/2017 ORDERING plaintiff to SHOW CAUSE in writing, within 30 days, why this action should not be dismissed for failure to state a claim.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRODERICK WARFIELD,

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No. 2:17-CV-1259-CMK-P

Plaintiff,
vs.

ORDER

HEATHER McCOUGH, et al.,
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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Plaintiff names the following as defendants: (1) Heather McCough; (2) Solano
County SPCA; (3) Solan County Custody Div.; and (4) Mike Donnelly, aka “Christopher.”

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Neither Heather McCough nor Mike Donnelly, aka “Christopher,” are alleged to be government

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officials. Plaintiff outlines three claims. In his first claim, plaintiff alleges that defendant

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McCough stole his dog. In his second claim, plaintiff appears to claim that unnamed officials at

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the Solano County Jail interfered with his access to the courts by improperly handling his legal

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mail. In his third claim, plaintiff alleges that unnamed officials at the Solano County Jail

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improperly ignored his reports that he saw the actual perpetrator (defendant Mike Donnelly, aka

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“Christopher”) of the crimes for which he was convicted on television.

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The complaint suffers from a number of fatal defects. First, plaintiff does not

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name any individual defendant who is alleged to be a government official. Because the private

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parties named in the complaint did not act under color of state law, plaintiff has not stated a

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cognizable § 1983 claim against them. See Price v. Hawai’i, 939 F.2d 702 (1991). Next,

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plaintiff does not allege an actual injury – such as prejudice with respect to contemplated or

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existing litigation, the inability to meet a filing deadline, or inability present a non-frivolous

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claim – in regard to his claim that unnamed jail officials improperly handled his legal mail. See

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id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Finally, with respect to

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plaintiff’s third claim, plaintiff does not allege any violation of his constitutional or statutory

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rights.
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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action

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should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to

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this order may result in dismissal of the action for the reasons outlined above, as well as for

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failure to prosecute and comply with court rules and orders. See Local Rule 110.

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IT IS SO ORDERED.

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DATED: September 19, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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