Davis v. Lewis et al

Filing 4

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 1/28/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 1/28/2013)

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*E-Filed 1/28/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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No. C 12-5124 RS (PR)

CHATETON DAVIS,
Plaintiff,
v.

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

G.D. LEWIS, et al.,
Defendants.

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/

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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a).
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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No. C 12-5124 RS (PR)
ORDER DISMISSING COMPLAINT

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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United States District Court
For the Northern District of California

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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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

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(2) that the alleged 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).

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B.

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Legal Claims
Plaintiff alleges that (1) Pelican Bay correctional officers James Holden and Robert

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Haberman used excessive force against him in violation of the Eighth Amendment;

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(2) Holden and Haberman falsified reports that resulted in his being charged and found guilty

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of battery on a peace officer; (3) the resulting disciplinary hearing and determination violated

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due process; and (4) Pelican Bay Warden G.D. Lewis conspired with Holden and Haberman

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to violate his constitutional rights. Liberally construed, claims 1–3 are cognizable under

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§ 1983. His claim against Lewis, however, is conclusory and undetailed. It is insufficient to

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say flatly that Lewis conspired to violate his rights. Plaintiff must provide specific details

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showing that Lewis knew of and participated in the alleged violation.

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Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an

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amended complaint within 30 days from the date this order is filed. The amended complaint

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must address all the deficiencies listed above, and include the caption and civil case number

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No. C 12-5124 RS (PR)
ORDER DISMISSING COMPLAINT

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used in this order (12-5124 RS (PR)) and the words FIRST AMENDED COMPLAINT on

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the first page. Because an amended complaint completely replaces the previous complaints,

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plaintiff must include in his first amended complaint all the claims he wishes to present and

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all of the defendants he wishes to sue, including claims 1–3 found cognizable above. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Any claims not raised in the first

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amended complaint will be deemed waived. Plaintiff may not incorporate material from the

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prior complaint by reference. Failure to file an amended complaint in accordance with this

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order will result in dismissal of this action without further notice to plaintiff.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

United States District Court
For the Northern District of California

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

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal of this

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action pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: January 28, 2013
RICHARD SEEBORG
United States District Judge

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No. C 12-5124 RS (PR)
ORDER DISMISSING COMPLAINT

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