McCowan v. Hedricks et al

Filing 3

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 1/6/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 1/6/2014)

Download PDF
1 2 *E-Filed 1/6/14* 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION United States District Court For the Northern District of California 10 11 12 VINCENT P. MCCOWAN, ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Plaintiff, 13 v. 14 15 No. C 13-3554 RS (PR) WARDEN B. HEDRICKS, et al., Defendants. 16 / 17 18 INTRODUCTION 19 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 20 prisoner. After review of the complaint pursuant to 28 U.S.C. § 1915A(a), the Court 21 DISMISSES the complaint with leave to file an amended complaint on or before February 22 15, 2014. 23 24 25 DISCUSSION A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 26 seeks redress from a governmental entity or officer or employee of a governmental entity. 27 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 28 No. C 13-3554 RS (PR) ORDER DISMISSING COMPLAINT 1 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 2 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 3 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 4 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 5 6 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 7 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 8 plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting United States District Court For the Northern District of California 10 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 11 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 12 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 14 that a right secured by the Constitution or laws of the United States was violated, and 15 that the alleged violation was committed by a person acting under the color of state law. See 16 West v. Atkins, 487 U.S. 42, 48 (1988). 17 B. (1) (2) Legal Claims 18 Plaintiff alleges that defendants, employees at Salinas Valley State Prison, (1) used 19 excessive force against him; (2) mishandled his property; and (3) provided constitutionally 20 inadequate medical care. The complaint is DISMISSED with leave to amend because these 21 claims allege different claims against different defendants. See Fed. R. Civ. P. 15 & 20. In 22 his amended complaint, plaintiff must choose one of these three sets of claims on which to 23 proceed in this action. The other two sets may be brought in separate civil rights actions. 24 Plaintiff shall file an amended complaint on or before February 15, 2014. The first 25 amended complaint must include the caption and civil case number used in this order 26 (13-3554 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first page. 27 Because an amended complaint completely replaces the previous complaints, plaintiff must 28 No. C 13-3554 RS (PR) ORDER DISMISSING COMPLAINT 2 1 include in his first amended complaint all the claims he wishes to present and all of the 2 defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 3 Plaintiff may not incorporate material from the prior complaint by reference. Failure to file 4 an amended complaint in accordance with this order will result in dismissal of this action 5 without further notice to plaintiff. 6 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 7 informed of any change of address by filing a separate paper with the clerk headed “Notice of 8 Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for 9 an extension of time to do so. Failure to comply may result in the dismissal of this action United States District Court For the Northern District of California 10 11 12 pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. DATED: January 6, 2014 RICHARD SEEBORG United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C 13-3554 RS (PR) ORDER DISMISSING COMPLAINT 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?