Colley v. County of San Mateo et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Complaint due by 7/1/2013. Signed by Judge Richard Seeborg on 5/22/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 5/22/2013)

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*E-Filed 5/22/13*

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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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United States District Court
For the Northern District of California

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BRIAN DOMINIC COLLEY,

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Plaintiff,

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No. C 13-0249 RS (PR)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
COUNTY OF SAN MATEO, et al.,

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Defendants.

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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. After review of the complaint pursuant to 28 U.S.C. § 1915A(a), the Court

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DISMISSES the complaint with leave to file an amended complaint on or before July 1,

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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

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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 13-0249 RS (PR)
ORDER DISMISSING COMPLAINT

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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 conclusions

United States District Court
For the Northern District of California

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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 three officers of the San Mateo Vehicle Task Force (Kennan,

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Ruiz, and Packs) violated his constitutional rights by (1) using excessive force against him;

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(2) stealing $4400 in cash from his person; (3) making false statements in their police report;

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and (4) failing to take an inventory of plaintiff’s possessions upon arrest. He also alleges that

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(5) another officer, Schofield, attempted to dissuade a witness from pursuing a claim that

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witness had against one of the officers.

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The complaint does not contain sufficient factual matter to state claims for relief. All

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claims are DISMISSED. Claim 1 is conclusory and undetailed. Plaintiff must allege specific

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facts, e.g., what actions which officer took, what means they used, what injuries (if any) he

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sustained, etc. Claim 1 is DISMISSED with leave to amend. Claim 2 also requires further

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factual details, such as whether the money was taken pursuant to the arrest or whether the

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No. C 13-0249 RS (PR)
ORDER DISMISSING COMPLAINT

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officers simply pocketed the money for their personal use. Claim 2 is DISMISSED with

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leave to amend. Claim 3 is also conclusory and undetailed. Plaintiff needs to provide

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specific information, such as what the statements actually were, what details they contained,

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etc. Claim 3 is DISMISSED with leave to amend. Claim 4 does not state how the failure to

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make an inventory of his items violated his constitutional rights. Claim 4 is DISMISSED

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with leave to amend. Claim 5 is DISMISSED without leave to amend. That claim concerns

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the rights of another person, and therefore plaintiff’s constitutional rights were not

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implicated.

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Plaintiff shall file an amended complaint on or before July 1, 2013. The first

United States District Court
For the Northern District of California

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amended complaint must include the caption and civil case number used in this order

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(13-0249 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first page.

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Because an amended complaint completely replaces the previous complaints, plaintiff must

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

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defendants he wishes to sue. 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

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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 action

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

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IT IS SO ORDERED.
DATED: May 22, 2013
RICHARD SEEBORG
United States District Judge

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No. C 13-0249 RS (PR)
ORDER DISMISSING COMPLAINT

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