Vincent Price McCowan v. A. Avalos et al

Filing 33

ORDER REOPENING CASE; ORDER DIRECTING PLAINITFF TO FILE AN AMENDED COMPLAINT. Signed by Judge Richard Seeborg on 3/4/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 3/4/2014)

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*E-Filed 3/4/14*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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VINCENT PRICE MCCOWAN,
Plaintiff,

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United States District Court
For the Northern District of California

ORDER REOPENING ACTION;

v.

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No. C 12-5631 RS (PR)

ORDER DIRECTING PLAINTIFF TO
FILE AN AMENDED COMPLAINT

A. AVALOS, et al.,
Defendants.

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/

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INTRODUCTION

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Plaintiff’s motion to reopen the action (Docket No. 32) is GRANTED. The action is

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REOPENED, and the Clerk is directed to amend the docket accordingly. The judgment

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(Docket No. 24) and the order of dismissal (Docket No. 23) are VACATED. After reviewing

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the complaint pursuant to 28 U.S.C. § 1915A(a), the Court dismisses the complaint with

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leave to file an amended complaint on or before April 15, 2014.

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Plaintiff’s motion to proceed in forma pauperis (Docket No. 30) is DENIED as moot,

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his prior application having been granted. The Clerk shall terminate Docket Nos. 30 and 32.

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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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No. C 12-5631 RS (PR)
ORDER REOPENING ACTION

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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).
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

United States District Court
For the Northern District of California

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

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

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Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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

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

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of state law. 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) A. Avalos, a correctional officer at Salinas Valley State

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Prison, “committed perjury” and “filed a false report”; (2) Divina Druz, a nurse at Salinas

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Valley, sexually harassed him by asking him to see his penis; (3) in 1984, Los Angeles police

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officers falsely arrested him; and (4) “a committee” at Salinas Valley filed reports falsely

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stating that he had raped a woman. The complaint will be dismissed for the following

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reasons. Claim 1 does not contain sufficient factual information. It does not state with

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specific details what the instance of alleged perjury was, what the false report contained, or

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how either of these alleged instances violated plaintiff’s rights. Claim 2 also does not state

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facts sufficient to show that plaintiff’s federal constitutional rights were violated, and it is

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unrelated to the prior claim. Claim 3 relates to incidents that happened outside this Court’s

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jurisdiction. Claim 4 also fails to state facts sufficient to show a violation of plaintiff’s

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No. C 12-5631 RS (PR)
ORDER REOPENING ACTION

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rights, and is it also unrelated to the other claims.
Accordingly, the complaint is DISMISSED with leave to amend. Claims 1, 2, and 4

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are not related to each other and are dismissed with leave to amend. In his amended

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complaint, plaintiff must choose one of these claims on which to proceed and supply facts

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sufficient to state a claim for the violation of his federal constitutional rights. Claim 3 is

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dismissed without leave to amend. Plaintiff may not raise this claim in his amended

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complaint. If he wishes to pursue this claim, he must file it with the state or federal courts

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where the alleged incident occurred.

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The fourth amended complaint must include the caption and civil case number used in

United States District Court
For the Northern District of California

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this order (12-5631 RS (PR)) and the words FOURTH AMENDED COMPLAINT on the

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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. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

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1992). Plaintiff may not incorporate material from the prior complaint by reference. Failure

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to file an amended complaint in accordance with this order will result in dismissal of this

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action without further notice to plaintiff. This fourth amended complaint must be filed on

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or before April 15, 2014.

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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: March 4, 2014
RICHARD SEEBORG
United States District Judge

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No. C 12-5631 RS (PR)
ORDER REOPENING ACTION

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