Filing 20

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge JEFFREY S. WHITE on 11/2/11. (jjoS, COURT STAFF) (Filed on 11/2/2011)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 KEVIN MAURICE TENNIN, ) ) ) Plaintiff, ) ) v. ) ) BLASE DEL, et al., ) ) Defendants. __________________________________ ) No. C 11-4362 JSW (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND 13 INTRODUCTION 14 Plaintiff, a California prisoner proceeding pro se, filed this rights action pursuant 15 to 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis in a 16 separate order. The Court now reviews the complaint and dismisses with leave to 17 amend. 18 DISCUSSION 19 I. Standard of Review 20 Federal courts must engage in a preliminary screening of cases in which prisoners 21 seek redress from a governmental entity or officer or employee of a governmental entity. 22 28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss any portion 23 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon 24 which relief may be granted,” or “seeks monetary relief from a defendant who is immune 25 from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed. 26 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 28 1 of the claim showing that the pleader is entitled to relief." "Specific facts are not 2 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 3 is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 4 (2007) (citations omitted). Although in order to state a claim a complaint “does not need 5 detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 6 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic 7 recitation of the elements of a cause of action will not do. . . . Factual allegations must 8 be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. 9 Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer 10 "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se 11 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 12 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: 13 14 (1) that a right secured by the Constitution or laws of the United States was violated, and 15 (2) that the alleged violation was committed by a person acting under the color of state 16 law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 II. 18 Legal Claims Plaintiff’s complaint includes a variety of brief and conclusory allegations against 19 a number of different prison officials. He alleges that 26 letter “went missing”, that 20 Defendant Officer Del “sexual[ly] threaten[ed]” him, that Defendant Officer Bohannan 21 “physically assaulted” him, that Defendant Spalding did not help him, that Lieutenant 22 Perry told him “to shup up I know nothing,” that Defendant Rice told him to take a 23 polygraph test, that Officer MacDonald threatened that other officer would beat him up, 24 that Investigator Brown gave him an “item” for buying heroin, and that Warden Smith 25 said that an investigation had been done. 26 The allegations of verbal threats and verbal harassment do not, alone, state a 27 cognizable claim for relief. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) 28 (allegations of mere threats also are not cognizable under § 1983); Gaut v. Sunn, 810 1 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong, nor 2 do allegations that naked threat was for purpose of denying access to courts compel 3 contrary result). Those claims will therefore be dismissed. The remaining allegations are too vague and conclusory to state a cognizable 4 5 claim. Federal Rule of Civil Procedure 8(a)(2) requires that the allegations '"give the 6 defendant fair notice of what the . . . . claim is and the grounds upon which it rests." 7 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). “Conclusory allegations 8 without more are insufficient." McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 9 (9th Cir. 1988). Plaintiff’s allegations do not give the Defendants fair notice of the 10 grounds upon which his claims rest. For example, Plaintiff alleges that Bohannan 11 “assaulted” him, but he does not allege even the basic facts supporting this allegation, 12 such as when, where or how the force was used, how much force was applied and 13 whether there was any resistance. The claim about missing mail does not allege what the 14 mail was, whether it was confidential, or who was responsible for losing it. Plaintiff will 15 be given leave to amend his complaint to state claims, other than claims of mere verbal 16 harassment or racial threat, to provide allege facts from which the Defendants will 17 receive fair notice of the grounds upon which the claims rest. 18 CONCLUSION 19 1. The complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall 20 file an amended complaint within thirty (30) days from the date of this order that cures 21 the deficiencies noted above. The amendment must include the caption and civil case 22 number used in this order and the words “COURT-ORDERED FIRST AMENDED 23 COMPLAINT” and the case number for this case (No. C 11-4362 JSW (PR)) on the first 24 page. Because an amended complaint completely replaces the original complaint, see 25 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate 26 material from the original or amended complaints by reference. Failure to amend within 27 the designated time and in accordance with this order will result in the dismissal of this 28 action. 1 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 2 Court informed of any change of address and must comply with the Court's orders in a 3 timely fashion. Failure to do so may result in the dismissal of this action under Federal 4 Rule of Civil Procedure 41(b). 5 IT IS SO ORDERED. 6 DATED: November 2, 2011 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JEFFREY S. WHITE United States District Judge 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 TENNIN, Case Number: CV11-04362 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 DEL et al, 9 Defendant. 10 11 12 13 14 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 2, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 15 16 19 Kevin M. Tennin T29992 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 20 Dated: November 2, 2011 17 18 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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