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)

Download PDF
1 2 3 *E-Filed 1/28/13* 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 13 No. C 12-5124 RS (PR) CHATETON DAVIS, Plaintiff, v. 14 15 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND G.D. LEWIS, et al., Defendants. 16 / 17 INTRODUCTION 18 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 19 20 prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a). DISCUSSION 21 22 23 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 24 seeks redress from a governmental entity or officer or employee of a governmental entity. 25 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 26 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 27 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 28 No. C 12-5124 RS (PR) ORDER DISMISSING COMPLAINT 1 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 2 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 3 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 8 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 9 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 10 United States District Court For the Northern District of California 4 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 12 (1) that a right secured by the Constitution or laws of the United States was violated, and 13 (2) that the alleged violation was committed by a person acting under the color of state law. 14 See West v. Atkins, 487 U.S. 42, 48 (1988). 15 B. 16 Legal Claims Plaintiff alleges that (1) Pelican Bay correctional officers James Holden and Robert 17 Haberman used excessive force against him in violation of the Eighth Amendment; 18 (2) Holden and Haberman falsified reports that resulted in his being charged and found guilty 19 of battery on a peace officer; (3) the resulting disciplinary hearing and determination violated 20 due process; and (4) Pelican Bay Warden G.D. Lewis conspired with Holden and Haberman 21 to violate his constitutional rights. Liberally construed, claims 1–3 are cognizable under 22 § 1983. His claim against Lewis, however, is conclusory and undetailed. It is insufficient to 23 say flatly that Lewis conspired to violate his rights. Plaintiff must provide specific details 24 showing that Lewis knew of and participated in the alleged violation. 25 Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an 26 amended complaint within 30 days from the date this order is filed. The amended complaint 27 must address all the deficiencies listed above, and include the caption and civil case number 28 No. C 12-5124 RS (PR) ORDER DISMISSING COMPLAINT 2 1 used in this order (12-5124 RS (PR)) and the words FIRST AMENDED COMPLAINT on 2 the first page. Because an amended complaint completely replaces the previous complaints, 3 plaintiff must include in his first amended complaint all the claims he wishes to present and 4 all of the defendants he wishes to sue, including claims 1–3 found cognizable above. See 5 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Any claims not raised in the first 6 amended complaint will be deemed waived. Plaintiff may not incorporate material from the 7 prior complaint by reference. Failure to file an amended complaint in accordance with this 8 order will result in dismissal of this action without further notice to plaintiff. 9 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court United States District Court For the Northern District of California 10 informed of any change of address by filing a separate paper with the clerk headed “Notice 11 of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask 12 for an extension of time to do so. Failure to comply may result in the dismissal of this 13 action pursuant to Federal Rule of Civil Procedure 41(b). 14 15 IT IS SO ORDERED. DATED: January 28, 2013 RICHARD SEEBORG United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C 12-5124 RS (PR) ORDER DISMISSING COMPLAINT 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?