Taylor v. Lewis et al

Filing 6

ORDER of Dismsisal with Leave to Amend. Amended Complaint due by 1/16/2013.. Signed by Judge Charles R. Breyer on 12/17/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 12/17/2012)

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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.,
Defendant(s).

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

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

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complaint under 42 U.S.C. § 1983. The gravamen of plaintiff's complaint is that

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prison officials "assaulted" him on more than one occasion by dragging him

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down to his knees and by kicking his cell door, and that prison officials

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improperly suspended his religious diet. Plaintiff adds little else, however.
DISCUSSION

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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 refuse to provide a healthy diet conforming to

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sincere religious beliefs states a cognizable claim under § 1983 for denial of the

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First Amendment right to exercise religious practices and beliefs. See Ward v.

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Walsh, 1 F.3d 873, 877 (9th Cir. 1993); McElyea v. Babbitt, 833 F.2d 196, 198

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(9th Cir. 1987).

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Plaintiff's allegations will be dismissed with leave to amend to set forth

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specific facts showing how defendants used force maliciously and sadistically to

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cause him harm, or refuse to provide him a healthy diet conforming to his sincere

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religious beliefs, if possible. Plaintiff must also link each named defendant with

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his allegations of wrongdoing so as to show how each defendant actually and

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proximately caused the deprivation of his federal rights of which he complains.

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See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A prison official cannot

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be liable for damages under § 1983 simply because he is responsible for the

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actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989).

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CONCLUSION
For the foregoing reasons, the complaint 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 FIRST AMENDED COMPLAINT on the first page. Failure to

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file a proper amended complaint within the designated time will result in the

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dismissal of this action.

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Plaintiff is advised that the amended complaint will supersede the original
complaint and all other pleadings. Claims and defendants not included in the

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amended complaint will not be considered by the court. See King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987).

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SO ORDERED.

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DATED: Dec. 17, 2012
CHARLES R. BREYER
United States District Judge

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