Muhammad v. Kassig et al

Filing 4

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND; DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS; DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Maxine M. Chesney on September 1, 2006. (mmclc1, COURT STAFF)

Muhammad v. Kassig et al

Doc. 4

Case 3:06-cv-05362-MMC

Document 4

Filed 09/01/2006

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

11
For the Northern District of California

CHARLES MUHAMMAD, Plaintiff, v. DON KASSIG, et al. Defendants /

No. C 06-5362 MMC ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND; DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS; DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Before the Court is plaintiff Charles Muhammad's complaint, application to proceed in forma pauperis, and application for a temporary restraining order, each filed August 31, 2006. When a party seeks to proceed in forma pauperis, the district court is required to dismiss the case if the court determines that the plaintiff fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). To state a claim upon which relief can be granted, a plaintiff must comply with Rule 8(a) of the Federal Rules of Civil Procedure, which requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. Proc. 8(a)(2). Plaintiff's complaint fails to comply with this requirement. Plaintiff's complaint, in addition to listing the names of the defendants, disclosing plaintiff's mailing address, and pleading a prayer for relief, alleges only that "[d]efendants violated the Fourth Amendment," "[d]efendants violated the Fifth Amendment," "[d]efendants violated

Dockets.Justia.com

Case 3:06-cv-05362-MMC

Document 4

Filed 09/01/2006

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the Sixth Amendment," and "[d]efendants violated the Eighth Amendment." There being no factual allegations in the compliant indicating how each particular defendant violated the four constitutional provisions referenced in the complaint, plaintiff has failed to state a claim showing he is entitled to relief. See Fed. R. Civ. P. 8(a)(2). Accordingly, plaintiff's complaint is hereby DISMISSED, with leave to file, no later than September 25, 2006, a First Amended Complaint. If plaintiff elects to do so, plaintiff must comply with Rule 8(a)(2) by alleging, as to each named defendant, facts to support plaintiff's conclusion that a constitutional violation or violations have occurred. If plaintiff does not file a First Amended Complaint by the required date, or the First Amended Complaint does not comply with Rule 8(a)(2), the Court will dismiss the action without further leave to amend. In light of the dismissal of plaintiff's complaint, plaintiff's application to proceed in forma pauperis is DENIED. Plaintiff may, however, resubmit an application to proceed in forma pauperis in the event plaintiff files a First Amended Complaint. Finally, plaintiff's application for a temporary restraining order, by which plaintiff seeks issuance of such order without notice to defendants, is hereby DENIED for failure to comply with Rule 65(b) of the Federal Rules of Civil Procedure. IT IS SO ORDERED.

Dated: September 1, 2006

MAXINE M. CHESNEY United States District Judge

2