Moye v. United States Government et al

Filing 4

ORDER of Dismissal with Leave to Amend. Signed by Judge Edward M. Chen on 10/9/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 10/9/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MALINKA TACUMA WADE MOYE,

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Plaintiff,
ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.

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For the Northern District of California

United States District Court

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No. C-13-2173 EMC (pr)

UNITED STATES GOVERNMENT; et al.,

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Defendants.
____________________________________/

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I.

INTRODUCTION

Malinka Tacuma Wade Moye, an inmate at the San Francisco County Jail, filed a pro se civil

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rights action under 42 U.S.C. § 1983. His complaint is now before the Court for review under 28

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U.S.C. § 1915A.

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II.

BACKGROUND

In his complaint in this action, Plaintiff alleges many conclusions but virtually no facts. He

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alleges that Defendants “conspired successfully to assault, rob, defraud & attain fraudulent bank

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loans by plaintiff’s realty property. Then attempted to fraudulently transfer again. Plaintiff

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unconstitutionally jailed. Defendants aided by authorities & U.S. Gov & City & County of S.F.

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Plaintiff denied trial. Illegally jailed over 24 mos. this time. Other time fake trial, plaintiff not

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guilty. Defendant’s attempting to do it again.” Docket # 1 at 3 (errors in source).

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III.

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DISCUSSION

A federal court must engage in a preliminary screening of any case in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). Pro se

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pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

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(9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right

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secured by the Constitution or laws of the United States was violated, and (2) that the violation was

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committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988).
The complaint has numerous defects and must be dismissed. First, the complaint fails to

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For the Northern District of California

United States District Court

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allege “a short and plain statement of the claim showing that the pleader is entitled to relief,” as

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required by Federal Rule of Civil Procedure 8(a)(2). The conclusory allegations in the complaint

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fail to satisfy some of the basic purposes of a complaint: framing the dispute and giving the

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defendants and court notice of the claims upon which relief is sought. “Specific facts are not

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necessary; the statement need only . . . give the defendant fair notice of what the . . . claim is and the

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grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations and internal

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quotation marks omitted). Although a complaint “does not need detailed factual allegations, . . . a

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plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. In his

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amended complaint, Plaintiff must allege a short and plain statement of each claim for relief he

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wishes to assert.

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Second, the complaint does not link any Defendant to a legal claim. In his amended

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complaint, Plaintiff must be careful to allege facts showing the basis for liability for each Defendant.

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He should not refer to them as a group (e.g., “the Defendants”); rather, he should identify each

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involved Defendant by name and link each of them to his claim by explaining what each involved

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Defendant did or failed to do that caused a violation of his rights. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988). Plaintiff is cautioned that there is no respondeat superior liability under

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Section 1983, i.e. no liability under the theory that one is responsible for the actions or omissions of

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an employee. Liability under Section 1983 arises only upon a showing of personal participation by

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the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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For each instance of a constitutional violation, Mr. Moye should name each person who

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violated his constitutional right(s), describe what each person did or failed to do that caused a

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violation of his constitutional right(s), state where the violation occurred, and state when the

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violation occurred.
Finally, the Court notes that Plaintiff has been declared a vexatious litigant and is subject to a

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For the Northern District of California

United States District Court

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pre-filing review in this court. See Moye v. Collins, No. 09-3893 MHP (Dec. 3, 2009 order

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declaring Plaintiff a vexatious litigant); Moye v. City & County of San Francisco, No. 09-3892

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WHA (Dec. 21, 2009 order dismissing action and requiring prefiling review). Due to the Court’s

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inability to understand the substance of the allegations in the complaint in the present action, the

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Court currently is unable to determine whether the action should be dismissed as barred by the

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prefiling review order.

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IV.

CONCLUSION

The complaint fails to state a claim upon which relief may be granted. Leave to amend is

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granted so that Plaintiff may attempt to state a claim against Defendants. The amended complaint

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must be filed no later than November 15, 2013, and must include the caption and civil case number

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used in this order and the words AMENDED COMPLAINT on the first page. Failure to file the

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amended complaint by the deadline will result in the dismissal of the action.

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IT IS SO ORDERED.

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Dated: October 9, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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