Hernandez v. Pern. and Shouwn. no

Filing 5

ORDER of Dismissal with Leave to Amend. Signed by Judge Edward M. Chen on 6/22/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 6/22/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GILBERT ROBLES HERNANDEZ, JR.,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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No. C-12-1159 EMC (pr)

PERN. AND SHOUWN,

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

Defendants.
___________________________________/

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Gilbert Robles Hernandez, Jr., an inmate at the Kern Valley State Prison, filed a pro se civil

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rights action under 42 U.S.C. § 1983. His complaint is now before the Court for review under 28

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U.S.C. § 1915A, which requires the Court to conduct a preliminary screening of any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

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The Court must identify any cognizable claims, and dismiss any claims which are frivolous,

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malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a

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defendant who is immune from such relief. See id. at § 1915A(b). Pro se pleadings must be

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liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A

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claim that is incomprehensible may be dismissed as frivolous as it is without an arguable basis in

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law. See Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989).

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The complaint in this action is incomprehensible and therefore subject to dismissal as

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frivolous under § 1915A. In the portion of the form complaint where the Plaintiff is directed to

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write a statement of his claim, Hernandez wrote: "Case being caution seeing. Now's the time."

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Complaint, p. 3. Other notations made by Hernandez on the form complaint are equally

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meaningless.

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Before dismissing the action, however, the Court will give Hernandez an opportunity to file

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an amended complaint that states a claim. To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two elements: (1) that a right secured by the Constitution or laws of the United States was

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

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See West v. Atkins, 487 U.S. 42, 48 (1988). For each instance of a constitutional violation,

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Hernandez should name each person who violated his constitutional right(s), describe what each

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person did or failed to do that caused a violation of his constitutional right(s), state at which

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institution the violation occurred, and state when the violation occurred.

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For the foregoing reasons, the complaint is DISMISSED with leave to amend. An amended
complaint must be filed no later than July 27, 2012. The amended complaint must include the

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For the Northern District of California

United States District Court

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caption and civil case number used in this Order and the words AMENDED COMPLAINT on the

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first page. Failure to timely file the amended complaint will result in the dismissal of this action.

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Finally, the in forma pauperis application submitted by Hernandez was incomplete because it

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did not have attached to it a "certified copy of the trust account statement (or institutional

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equivalent) for the 6-month period immediately preceding the filing of the complaint" as required by

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28 U.S.C. § 1915(a)(2). No later than July 27, 2012, Hernandez must complete the application by

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filing a copy of his prisoner trust account statement showing transactions for the last six months,

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with a certificate of funds in his trust account that has been signed by an authorized officer at the

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prison.

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IT IS SO ORDERED.

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Dated: June 22, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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