Gaines v. Hedgpeth et al

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Jeffrey S. White on 5/31/2011. (Attachments: # 1 Certificate of service)(lmh, COURT STAFF) (Filed on 5/31/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LESLIE J. GAINES,
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Plaintiff,
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v.
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A. HEDGEPETH, et al.,
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Defendants.
__________________________________ )

No. C 11-2124 JSW (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

INTRODUCTION

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Plaintiff, a California prisoner proceeding pro se, filed this rights action pursuant

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

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separate order. The Court now reviews the complaint and dismisses with leave to

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amend.

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DISCUSSION
I.

Standard of Review

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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). The Court must identify cognizable claims or dismiss any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon

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which relief may be granted,” or “seeks monetary relief from a defendant who is immune

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from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed.

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Balistreri v. Pacifica Police 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 the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007) (citations omitted). Although in order to state a claim a complaint “does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer

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"enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

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699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting under the color of state

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

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II.

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Legal Claims
Plaintiff alleges that in 2007 he arrived at Salinas Valley State Prison and sought

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dental care. He complains that he paid for new “teeth” but never received them, and

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when he complained to prison officials, he was “retaliated” against by being told that he

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needed to have all of his teeth removed and replaced. According to Plaintiff, he was then

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seen by another dentist who made an unwanted sexual advance towards him. He alleges

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that he still has not received adequate dental care, cannot chew his food, and is thus not

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receiving the nutrition he needs.

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Plaintiff has named six prison officials as defendants, but he has not alleged what

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role any of them played in his allegations. Liability may be imposed on an individual

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defendant under 42 U.S.C. § 1983 if the plaintiff can show that the defendant

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proximately caused the deprivation of a federally protected right. Leer v. Murphy, 844

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F.2d 628, 634 (9th Cir. 1988). At the pleading stage, "[a] plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally involved in the

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deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998). Plaintiff has not alleged which defendants were involved in providing him with

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inadequate dental care or retaliating against him, or how they did so. He has also not

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alleged who made the unwanted sexual advance towards him. As a result, his complaint

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does not allege how the named defendants caused the claimed deprivations of his

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constitutional rights, and must be dismissed.
Plaintiff will be given leave to amend to cure this deficiency. If he fails to do so,

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this case will be dismissed.
CONCLUSION

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1. The complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall

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file an amended complaint within thirty (30) days from the date of this order. The

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amendment must include the caption and civil case number used in this order and the

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words “COURT-ORDERED FIRST AMENDED COMPLAINT” on the first page.

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Because an amended complaint completely replaces the original complaint, see Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material

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from the original or amended complaints by reference. Failure to amend within the

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designated time and in accordance with this order will result in the dismissal of this

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action.

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

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Court informed of any change of address and must comply with the Court's orders in a

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timely fashion. Failure to do so may result in the dismissal of this action under Federal

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Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: May 31, 2011

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JEFFREY S. WHITE
United States District Judge