Taylor v. Lewis et al

Filing 13

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 10 Second Amended Complaint filed by D. L. Taylor Third Amended Complaint due by 7/15/2013.. Signed by Judge Charles R. Breyer on 6/13/13. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 6/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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D. L. TAYLOR, C-05467,
Plaintiff(s),

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vs.

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G. D. LEWIS, et al.,

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Defendant(s).

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No. C 12-3424 CRB (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND
(Docket # 12)

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Plaintiff, a prisoner at Pelican Bay State Prison (PBSP), has filed a pro se

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Second Amended Complaint (SAC) under 42 U.S.C. § 1983 claiming various

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violations of his constitutional civil rights. Plaintiff specifically alleges that

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defendants "assaulted" him on more than one occasion, asked other prisoners to

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harm him and denied him medical care. Plaintiff adds little else, however.

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In a recent motion for injunctive relief, plaintiff also requests an order

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compelling defendants to reinstate his religious diet and to return improperly

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confiscated books.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint

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"is frivolous, malicious, or fails to state a claim upon which relief may be

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granted," or "seeks monetary relief from a defendant who is immune from such

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relief." Id. § 1915A(b). Pro se pleadings must be liberally construed, however.

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

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

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

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was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims
It is well-established that allegations that prison officials used force

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maliciously and sadistically to cause harm, rather than in a good-faith effort to

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maintain or restore discipline, state a cognizable claim under § 1983 for violation

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of the Eighth Amendment right to be free of cruel and unusual punishment. See

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Hudson v. McMillian, 503 U.S. 1, 6 (1992). And it is equally well-established

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that allegations that prison officials were deliberate indifferent to a prisoner's

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health and safety concerns also state a cognizable Eighth Amendment claim

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under § 1983. See Farmer v. Brennan, 511 U.S. 825, 832, 837 (1994) (prison

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official deliberately indifferent only if he knew of and disregarded an excessive

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risk to inmate health or safety).

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Plaintiff's conclusory allegations will be dismissed with leave to amend to

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set forth specific facts showing how defendants used force maliciously and

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sadistically to cause him harm, and/or were deliberately indifferent to plaintiff's

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health or safety concerns, if possible. Plaintiff must also link each named

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defendant with his allegations of wrongdoing so as to show how each defendant

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actually and proximately caused the deprivation of his federal rights of which he

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complains. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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CONCLUSION
For the foregoing reasons, the SAC is DISMISSED with leave to amend,

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as indicated above, within 30 days of this order. The pleading must be simple

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and concise and must include the caption and civil case number used in this order

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and the words THIRD AMENDED COMPLAINT (TAC) on the first page.

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Failure to file a proper TAC within the designated time will result in the

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dismissal of this action.

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Plaintiff's recent motion for injunctive relief (docket # 12) is DENIED.

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But plaintiff is free to set forth specific facts in his TAC showing how defendants

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failed to provide him a healthy diet conforming to his sincere religious beliefs

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and/or improperly confiscated his books. Plaintiff must also link each named

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defendant with his allegations of wrongdoing.

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Plaintiff is advised that the TAC will supersede the original complaint and

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all other pleadings. Claims and defendants not included in the TAC will not be

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considered by the court. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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SO ORDERED.

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DATED: June 13, 2013
CHARLES R. BREYER
United States District Judge

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N:\Taylor, D.12-3424.dwlta2.wpd

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