Walters v. Mitchel

Filing 12

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 9/20/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 9/20/2010)

Waiters v. Mitchel

Doc. 12

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*E-Filed 9/20/10*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

GARY WAITERS, Plaintiff, v. SERGEANT MITCHELL, Defendant. /

No. C 10-3092 RS (PR) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a). DISCUSSION A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may
No. C 10-3092 RS (PR) ORDER DISMISSING COMPLAINT

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be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A "complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754­55 (9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). B. Legal Claims Plaintiff, who is currently incarcerated in South Carolina, alleges that defendant Sergeant Mitchel twice touched plaintiff inappropriately. Plaintiff has not stated a claim on which relief can be granted. Specifically, plaintiff has not alleged in which institution these alleged acts took place, or the dates of the alleged actions. Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an amended complaint correcting the deficiencies described in this order within 30 days from the date this order is filed. It also appears that plaintiff has not exhausted his administrative remedies as to this claim. "No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the discretion of the
No. C 10-3092 RS (PR) ORDER DISMISSING COMPLAINT

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district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). Accordingly, plaintiff must (1) restate his claim against Sgt. Mitchel, and include the dates of the alleged incidents, and in which institution they took place; and (2) show that he has exhausted his administrative remedies for this claim. The first amended complaint must include the caption and civil case number used in this order (10-3092 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the previous complaints, plaintiff must include in his first amended complaint all the claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior complaint by reference. Failure to file an amended complaint in accordance with this order will result in dismissal of this action without further notice to plaintiff. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed "Notice of Change of Address." He must comply with the Court's orders in a timely fashion or ask for an extension of time to do so. Failure to comply may result in the dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b). CONCLUSION The complaint is DISMISSED with leave to amend. Plaintiff shall file an amended complaint correcting the deficiencies described in this order within 30 days from the date this order is filed. Failure to file an amended complaint by such time will result in dismissal of the action without further notice to plaintiff. IT IS SO ORDERED. DATED: September 20, 2010 RICHARD SEEBORG United States District Judge

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No. C 10-3092 RS (PR) ORDER DISMISSING COMPLAINT