Burghardt -v- Franz

Filing 15

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Complaint due by 11/15/2013. Signed by Judge Richard Seeborg on 10/3/13. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 10/3/2013)

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*E-Filed 10/3/13*

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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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DARRYL BURGHARDT,

No. C 12-5190 RS (PR)

Plaintiff,

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v.

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

J. FRANZ, 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
prisoner. After reviewing the amended complaint pursuant to 28 U.S.C. § 1915A(a), the
Court dismisses the complaint with leave to file an amended complaint on or before
November 15, 2013.

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DISCUSSION
A.

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

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

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No. C 12-5190 RS (PR)
ORDER DISMISSING COMPLAINT

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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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§ 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).

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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

United States District Court
For the Northern District of California

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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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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) J. Franz, a correctional officer at Pelican Bay State Prison

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(“PBSP”), violated his First and Eighth Amendment rights by smashing plaintiff’s hand in a

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food tray in retaliation for attempting to file a prison grievance; (2) R. Graham, also a PBSP

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correctional officer, violated his First Amendment rights by retaliating against him for filing

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a grievance; (3) G.A. Kelly, also a Pelican Bay correctional officer, refused to rectify or

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prevent Franz’s acts of retaliation; and (4) K. Bragger, also a correctional officer, furthered

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the First and Eighth Amendment violations by falsifying a medical report and through other

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acts. Liberally construed, Claims 1, 3, and 4 are cognizable under § 1983. Claim 2,

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however, lacks sufficient detail. Plaintiff alleges that R. Graham placed him in danger, yet

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No. C 12-5190 RS (PR)
ORDER DISMISSING COMPLAINT

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fails to provide specific details (such as times, dates, places, the names of the persons

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involved) regarding the dangers he faced. In his amended complaint, plaintiff must supply

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such specific details.

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The complaint is DISMISSED with leave to amend. Plaintiff shall file an amended
complaint on or before November 15, 2013. The first amended complaint must include the

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caption and civil case number used in this order (12-5190 RS (PR)) and the words FIRST

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AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the previous complaints, plaintiff must include in his first amended complaint all the

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claims he wishes to present and all of the defendants he wishes to sue, including Claims 1, 3,

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United States District Court
For the Northern District of California

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and 4 found cognizable above. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Any claims not raised in the amended complaint will be deemed waived. Plaintiff may not

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incorporate material from the prior complaint by reference. Failure to file an amended

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complaint in accordance with this order will result in dismissal of this action without further

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notice to plaintiff.

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

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

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

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

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

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IT IS SO ORDERED.
DATED: October 3, 2013
RICHARD SEEBORG
United States District Judge

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No. C 12-5190 RS (PR)
ORDER DISMISSING COMPLAINT

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