McCowan

Filing 14

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Complaint due by 8/1/2013. Signed by Judge Richard Seeborg on 6/24/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 6/24/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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VINCENT P. MCCOWAN,

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Plaintiff,

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v.

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No. C 13-0407 RS (PR)

G. HEDRICK, 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

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prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a). On or

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before August 1, 2013, plaintiff shall file an amended complaint addressing the

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deficiencies detailed herein.

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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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No. C 13-0407 RS (PR)
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

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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).
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

United States District Court
For the Northern District of California

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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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that a right secured by the Constitution or laws of the United States was violated, and

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that the alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

(1)
(2)

Legal Claims

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Plaintiff alleges that his jailors at Salinas Valley State Prison violated his (1) First

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Amendment rights by opening a piece of mail he sent to his attorney; and (2) due process

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rights when they denied his inmate grievance related to the mail. The complaint is dismissed

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with leave to amend because it contains many serious deficiencies. First, it is not clear

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whether plaintiff fully exhausted his inmate grievances regarding either claim. Prisoners

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must properly exhaust their administrative remedies before filing suit in federal court.

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42 U.S.C. § 1997e(a). To exhaust properly administrative remedies in California state

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prisons, inmates must proceed through a four-step process, which consists of (1) an informal

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attempt at resolution; (2) a first-level formal appeal; (3) a second-level appeal to the

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institution head; and (4) an appeal to the Director of the California Department of

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No. C 13-0407 RS (PR)
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

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Corrections and Rehabilitation. See 15 Cal. Code Regs. § 3084.5. In his amended

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complaint, plaintiff must show that he fully exhausted his administrative remedies as to both

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claims. Any claim not fully exhausted will be dismissed.

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Second, plaintiff has failed to state a First Amendment claim against any specific

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person. Plaintiff must name the person or persons responsible for the alleged constitutional

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violations.

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Third, plaintiff names G. Hedrick, Warden, as a defendant, but fails to state any claim

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against him. In his amended complaint he must state a specific claim against Hedrick, or

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drop him as a defendant. Plaintiff is cautioned about naming a person who acted only as a

United States District Court
For the Northern District of California

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supervisor, rather than a direct participant in the alleged acts. It is not enough that the

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supervisor merely has a supervisory relationship over the defendants; the plaintiff must show

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that the supervisor “participated in or directed the violations, or knew of the violations and

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failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Failure to

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allege sufficient facts on this point will result in the dismissal of Hedrick as a defendant.

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Fourth, it is not a violation of due process simply to deny an inmate grievance.

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Plaintiff must allege facts that he was denied due process, not just that he failed to achieve

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the result he sought.

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Accordingly, the complaint is DISMISSED with leave to amend. On or before

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August, 1, 2013, plaintiff shall file an amended complaint addressing the deficiencies

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detailed herein. The first amended complaint must include the caption and civil case

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number used in this order (13-0407 RS (PR)) and the words FIRST AMENDED

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

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

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wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior complaint

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by reference. Failure to file an amended complaint in accordance with this order will result

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in dismissal of this action without further notice to plaintiff.

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No. C 13-0407 RS (PR)
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

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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: June 24, 2013
RICHARD SEEBORG
United States District Judge

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United States District Court
For the Northern District of California

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No. C 13-0407 RS (PR)
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

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