Tennin

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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KEVIN MAURICE TENNIN,

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Plaintiff,
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v.
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BLASE DEL, et al.,
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Defendants.
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No. C 11-4362 JSW (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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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
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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
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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).
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’s complaint includes a variety of brief and conclusory allegations against

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a number of different prison officials. He alleges that 26 letter “went missing”, that

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Defendant Officer Del “sexual[ly] threaten[ed]” him, that Defendant Officer Bohannan

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“physically assaulted” him, that Defendant Spalding did not help him, that Lieutenant

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Perry told him “to shup up I know nothing,” that Defendant Rice told him to take a

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polygraph test, that Officer MacDonald threatened that other officer would beat him up,

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that Investigator Brown gave him an “item” for buying heroin, and that Warden Smith

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said that an investigation had been done.

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The allegations of verbal threats and verbal harassment do not, alone, state a

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cognizable claim for relief. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997)

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(allegations of mere threats also are not cognizable under § 1983); Gaut v. Sunn, 810

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F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong, nor

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do allegations that naked threat was for purpose of denying access to courts compel

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contrary result). Those claims will therefore be dismissed.
The remaining allegations are too vague and conclusory to state a cognizable

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claim. Federal Rule of Civil Procedure 8(a)(2) requires that the allegations '"give the

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defendant fair notice of what the . . . . claim is and the grounds upon which it rests."

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). “Conclusory allegations

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without more are insufficient." McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810

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(9th Cir. 1988). Plaintiff’s allegations do not give the Defendants fair notice of the

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grounds upon which his claims rest. For example, Plaintiff alleges that Bohannan

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“assaulted” him, but he does not allege even the basic facts supporting this allegation,

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such as when, where or how the force was used, how much force was applied and

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whether there was any resistance. The claim about missing mail does not allege what the

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mail was, whether it was confidential, or who was responsible for losing it. Plaintiff will

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be given leave to amend his complaint to state claims, other than claims of mere verbal

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harassment or racial threat, to provide allege facts from which the Defendants will

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receive fair notice of the grounds upon which the claims rest.

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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 that cures

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the deficiencies noted above. The amendment must include the caption and civil case

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number used in this order and the words “COURT-ORDERED FIRST AMENDED

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COMPLAINT” and the case number for this case (No. C 11-4362 JSW (PR)) on the first

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page. Because an amended complaint completely replaces the original complaint, see

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

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

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the 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.

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DATED: November 2, 2011

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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TENNIN,

Case Number: CV11-04362 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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DEL et al,

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Defendant.

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/

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.

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Kevin M. Tennin
T29992
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: November 2, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk