Lindsay v. Lewis et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 9/27/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 9/27/2011)

1
2

*E-Filed 9/27/11*

3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

SAN FRANCISCO DIVISION

8
9

TARENCE T. LINDSAY,
Plaintiff,

United States District Court
For the Northern District of California

10

GRAY LEWIS, et al.,
Defendants.

13

/

14
15

INTRODUCTION

16
17

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).

18
19
20
21
22
23
24
25
26

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

11
12

No. C 11-2839 RS (PR)

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
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

27
28

No. C 11-2839 RS (PR)
ORDER DISMISSING COMPLAINT

A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

1
2

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

3

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

4

plausibility when the plaintiff pleads factual content that allows the court to draw the

5

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

6

Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

7

cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

8

the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

9

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

United States District Court
For the Northern District of California

10

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

11

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

12

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

13

B.

14

Legal Claims
The complaint will be dismissed with leave to amend. Plaintiff alleges that defendants

15

used excessive force and retaliated against him, yet he has not shown that he has properly

16

exhausted his administrative remedies as to any claim. Plaintiff states at one point in the

17

complaint that he did not pursue the first steps of the grievance process because they were

18

“not require[d].” Later he states that he filed at least two first-level grievances. Not only are

19

these statements contradictory, plaintiff does not state or show that he pursued his grievances

20

through all levels of administrative review. He must show that he properly exhausted his

21

claims before his suit can proceed. If plaintiff has not properly exhausted, he must exhaust

22

his claims before pursuing them in this Court.

23

Prisoners must properly exhaust their administrative remedies before filing suit in

24

federal court. “No action shall be brought with respect to prison conditions under [42 U.S.C.

25

§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other

26

correctional facility until such administrative remedies as are available are exhausted.” 42

27

U.S.C. § 1997e(a). Exhaustion is mandatory and is no longer left to the discretion of the
No. C 11-2839 RS (PR)
ORDER DISMISSING COMPLAINT

28
2

1

district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S.

2

731, 739 (2001)). To exhaust properly administrative remedies in California state prisons,

3

inmates must proceed through a four-step process, which consists of (1) an informal attempt

4

at resolution; (2) a first-level formal appeal; (3) a second-level appeal to the institution head;

5

and (4) an appeal to the Director of the California Department of Corrections and

6

Rehabilitation. See 15 Cal. Code Regs. § 3084.5. In his amended complaint, plaintiff must

7

show that he properly exhausted his administrative remedies as to every claim he wishes to

8

assert.

9

Accordingly, the complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff

United States District Court
For the Northern District of California

10

shall file an amended complaint addressing the concerns detailed above within 30 days from

11

the date this order is filed. The first amended complaint must include the caption and civil

12

case number used in this order (11-2839 RS (PR)) and the words FIRST AMENDED

13

COMPLAINT on the first page. Because an amended complaint completely replaces the

14

previous complaints, plaintiff must include in his first amended complaint all the claims he

15

wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963

16

F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior

17

complaint by reference. Failure to file an amended complaint in accordance with this order

18

will result in dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).

19

It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

20

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

21

of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

22

for an extension of time to do so. Failure to comply may result in the dismissal of this action

23

for failure to prosecute.

24

IT IS SO ORDERED.

25

DATED: September 27, 2011
RICHARD SEEBORG
United States District Judge

26
27

No. C 11-2839 RS (PR)
ORDER DISMISSING COMPLAINT

28
3