Vincent Price McCowan v. A. Avalos et al

Filing 36

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 9/24/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 9/24/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN FRANCISCO DIVISION 6 7 VINCENT PRICE MCCOWAN, Plaintiff, 8 United States District Court For the Northern District of California ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. 9 10 No. C 12-5631 RS (PR) A. AVALOS, et al., Defendants. 11 / 12 INTRODUCTION 13 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983. The Court now 14 15 reviews the fourth amended complaint pursuant to 28 U.S.C. § 1915A(a). DISCUSSION 16 17 18 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 19 seeks redress from a governmental entity or officer or employee of a governmental entity. 20 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 21 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 22 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 23 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 24 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 25 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 26 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 27 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 28 No. C 12-5631 RS (PR) ORDER DISMISSING COMPLAINT 1 plausibility when the plaintiff pleads factual content that allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 3 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 4 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 5 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 7 that a right secured by the Constitution or laws of the United States was violated, and 8 that the alleged violation was committed by a person acting under the color of state law. See 9 West v. Atkins, 487 U.S. 42, 48 (1988). United States District Court For the Northern District of California 10 11 B. (1) (2) Legal Claims Plaintiff alleges that (1) Salinas Valley State Prison correctional officer A. Avalos, in 12 2012, filed a false disciplinary report against him, thereby violating his due process rights; 13 (2) Salinas Valley State Prison nurse Divina Druz sexually harassed him by asking to see his 14 penis, thereby violating his Eighth Amendment rights; (3) Los Angeles police officers 15 violated his constitutional rights in 1984; (4) Salinas Valley Correctional Officer Vargas 16 refused to mail his legal mail and opened his legal mail; (5) Salinas Valley Correctional 17 Officer Button searched his cell and personal property; and (6) the law library, staffed by 18 Tomlinson, is not providing constitutionally adequate access. Only Claim 4 survives. 19 Claim 1 is DISMISSED without leave to amend because it is pending in another of 20 plaintiff’s actions (McCowan v. Hedrick, No. C 13-0407 RS). Claim 2 is DISMISSED 21 without leave to amend because it was dismissed in the prior action just named for failure to 22 state a claim. Claim 3 is DISMISSED without leave to amend because the events occurred in 23 another district. If plaintiff wishes to pursue federal relief on his claims against the Los 24 Angeles Police Department, he must file in the Central District. The Los Angeles Police 25 Department is TERMINATED as a defendant in this action. 26 Claim 4 is DISMISSED with leave to amend because the allegations do not state a 27 claim for relief. Plaintiff must detail what (and how many) pieces of mail were allegedly 28 No. C 12-5631 RS (PR) ORDER DISMISSING COMPLAINT 2 1 blocked by the correctional officer, whether the mail was eventually sent (or blocked 2 entirely), how the mail qualifies as legal mail, and how many times the actions occurred. 3 Claims 5 and 6 are DISMISSED without prejudice. These claims involve incidents 4 and defendants different than those in Claim 4. If plaintiff wishes to pursue these claims, he 5 must file each claim in a separate civil rights action. Defendants Button and Tomlinson are 6 TERMINATED as defendants in this action. 7 Accordingly, the complaint is DISMISSED with leave to amend as to Claim 4 only. 8 No other claims may be raised. The amended complaint must include the caption and civil 9 case number used in this order (12-5631 RS (PR)) and the words FIFTH AMENDED United States District Court For the Northern District of California 10 COMPLAINT on the first page. The amended complaint shall be filed on or before 11 November 1, 2014. Because an amended complaint completely replaces the previous 12 complaints, plaintiff must include in his first amended complaint all the claims he wishes to 13 present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 14 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior complaint by 15 reference. Any claims not raised in the amended complaint will be deemed waived. Failure 16 to file an amended complaint in accordance with this order will result in dismissal of this 17 action without further notice to plaintiff. 18 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 19 informed of any change of address by filing a separate paper with the clerk headed “Notice of 20 Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for 21 an extension of time to do so. Failure to comply may result in the dismissal of this action 22 pursuant to Federal Rule of Civil Procedure 41(b). 23 IT IS SO ORDERED. 24 DATED: September 24, 2014 RICHARD SEEBORG United States District Judge 25 26 27 28 No. C 12-5631 RS (PR) ORDER DISMISSING COMPLAINT 3

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