Dixon v. Hennessey

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 8/23/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 8/23/2010)

Dixon v. Hennessey

Doc. 7

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*E-Filed 8/23/10*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

MICHAEL DIXON, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. /

No. C 10-3296 RS (PR) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

This is a federal civil rights action filed pursuant to 28 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 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
No. C 10-3296 RS (PR) ORDER DISMISSING COMPLAINT

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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 alleges that defendants, officers and employees of San Francisco Sheriff's Department, violated his right to equal protection by providing inadequate access to the law library. Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a claim for any violation of the right of access to the courts, the prisoner must prove that there was an inadequacy in the prison's legal access program that caused him an "actual injury." See Lewis, 518 U.S. at 350­55. To prove an actual injury, the prisoner must show that the inadequacy in the prison's program hindered his efforts to pursue a non-frivolous claim concerning his conviction or conditions of confinement. See id. at 354­55. Plaintiff's complaint does not contain sufficient factual matter to state a claim to relief that is plausible on its face. Specifically, plaintiff has not alleged specific facts regarding an
No. C 10-3296 RS (PR) ORDER DISMISSING COMPLAINT

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actual injury, that the alleged lack of adequate access to the law library hindered his efforts to perfect and pursue a specific legal action. Rather, he alleges only that his lack of access to the law library has made it difficult or impossible to respond to court orders in various unnamed court actions. This is insufficient to show actual injury. Plaintiff must allege specific facts detailing how his efforts to pursue a specific legal action or actions were hindered by defendants. Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an amended complaint 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. The first amended complaint must include the caption and civil case number used in this order (10-3296 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). IT IS SO ORDERED. DATED: August 23, 2010 RICHARD SEEBORG United States District Judge

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No. C 10-3296 RS (PR) ORDER DISMISSING COMPLAINT