Duncan v. Lewis et al

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge William Alsup on 10/28/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/28/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DARRYL W. DUNCAN,

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Plaintiff,

For the Northern District of California

United States District Court

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No. C 11-5055 WHA (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
GREG LEWIS, Warden; Correctional
Officer BRENMEN,

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Defendants.
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/

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INTRODUCTION
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Plaintiff, an California prisoner, filed a pro se civil rights complaint under 42 U.S.C.
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1983 against officials of Pelican Bay State Prison. Plaintiff is granted leave to proceed in forma
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pauperis in a separate order. The complaint is reviewed pursuant to 28 U.S.C. 1915A and
dismissed with leave to amend.

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ANALYSIS
A.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek
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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro
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se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699
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(9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

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claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the

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statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds

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upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative

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level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.
at 1974.

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For the Northern District of California

United States District Court

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

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

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that the alleged deprivation was committed by a person acting under the color of state law.

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

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B.

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LEGAL CLAIMS
Plaintiff alleges that when he was eating his breakfast he chewed a small piece of glass

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that was in his food. Plaintiff has not alleged that the defendants, Brenmen and Lewis, were

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involved in causing the glass to get into the food. Plaintiff may only name individuals whose

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actions or omissions proximately caused the glass to appear in his food. See Leer v. Murphy,

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844 F.2d 628, 634 (9th Cir. 1988). Furthermore, he “must allege facts, not simply conclusions,

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that show that an individual was personally involved in the deprivation of his civil rights.”

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Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). He alleges that defendant Brenmen

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is a correctional officer at the prison, and he came over, took the piece of glass and documented

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the incident. The only involvement of Brenmen, as alleged, was after the fact. He alleges that

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defendant Lewis is the Warden of PBSP, but he does not allege that Lewis was involved in

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causing the glass to get into his food. Plaintiff may not name Lewis as a defendant simply

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because he is the supervisor of other individuals who might have caused the problem because

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there is no respondeat superior liability under Section 1983. See Taylor v. List, 880 F.2d 1040,
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1045 (9th Cir. 1989). Rather, plaintiff must allege that actions or omissions by Lewis, like that

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of any other individual defendant he names, that proximately caused the glass to be in his food.

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CONCLUSION

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1. The complaint is DISMISSED with leave to amend, as indicated above, within thirty

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days from the date of this order. The amended complaint must include the caption and civil

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case number used in this order (No. C 11-5055 WHA (PR)) and the words AMENDED

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

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original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the
original complaint by reference. Failure to amend within the designated time and in accordance

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For the Northern District of California

United States District Court

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with this order will result in the dismissal of this action.

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

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

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Change of Address.” Papers intended to be filed in this case should be addressed to the clerk

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and not to the undersigned. Plaintiff also must comply with all orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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Dated: October

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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