Brown, III

Filing 11

ORDER Dismissing Complaint with Leave to Amend. Signed by Judge Nandor Vadas on 1/13/2015. (njvlc1, COURT STAFF) (Filed on 1/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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DENNIS BROWN,
No. C 14-5497 NJV (PR)
Plaintiff,

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WARDEN RON DAVIS, et. al.,
Defendants.

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For the Northern District of California

United States District Court

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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Plaintiff, a prisoner being held in Alabama, has filed a pro se civil rights complaint

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under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. (Doc.

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10.)

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of

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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;

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the statement need only '"give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine

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For the Northern District of California

omitted). Although in order to state a claim a complaint “does not need detailed factual

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United States District Court

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

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679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff states he is a former California State prisoner who had been incarcerated in

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San Quentin State Prison and is now being held in county jail in Alabama for a probation

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violation. He states that California inmates have attempted to have members of plaintiff’s

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family murdered. He also states that in 2001 several corrections officials tried to have

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plaintiff sign an agreement to have two devices that had been implanted in plaintiff

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removed, but plaintiff refused to sign. In 2014, plaintiff alleges that he was assaulted in

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Alabama by two men who described themselves as representatives from California. For

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relief plaintiff seeks an investigation into these matters and monetary damages.

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As currently pled, the complaint fails to state a claim. In order to obtain relief
pursuant to 42 U.S.C. § 1983, plaintiff must describe how a right secured by the

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Constitution or laws of the United States was violated and that it was committed by a

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person acting under the color of state law. Plaintiff will be provided one opportunity to

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amend.
CONCLUSION

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1. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed within twenty-eight (28)

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days of the date this order is filed and must include the caption and civil case number used

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in this order and the words AMENDED COMPLAINT on the first page. Because an

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amended complaint completely replaces the original complaint, plaintiff must include in it all
the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

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For the Northern District of California

United States District Court

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1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this action.

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2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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court informed of any change of address by filing a separate paper with the clerk headed

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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: January 13, 2015.
NANDOR J. VADAS
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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Plaintiff,

For the Northern District of California

United States District Court

CERTIFICATE OF SERVICE

v.
WARDEN RON DAVIS, et al,
Defendants.

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No.14-CV-5497 NJV

DENNIS BROWN,

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I, the undersigned, hereby certify that on January 13, 2015, I served a true and correct copy

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of the attached by placing said copies in a postage paid envelope addressed to the person(s) listed

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below, by depositing said envelope in the U.S. Mail.

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Dennis Brown, III
#108821
Kilby Correctional Facility
P.O. Box 150
Mt. Meigs, AL 36057

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/s/ Linn Van Meter
Linn Van Meter
Administrative Law Clerk to the
Honorable Nandor J. Vadas

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