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)

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*E-Filed 1/6/14*

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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 13-3554 RS (PR)

WARDEN B. HEDRICKS, 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. 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 February

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15, 2014.

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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 13-3554 RS (PR)
ORDER DISMISSING COMPLAINT

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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 defendants, employees at Salinas Valley State Prison, (1) used

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excessive force against him; (2) mishandled his property; and (3) provided constitutionally

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inadequate medical care. The complaint is DISMISSED with leave to amend because these

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claims allege different claims against different defendants. See Fed. R. Civ. P. 15 & 20. In

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his amended complaint, plaintiff must choose one of these three sets of claims on which to

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proceed in this action. The other two sets may be brought in separate civil rights actions.

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Plaintiff shall file an amended complaint on or before February 15, 2014. The first

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

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(13-3554 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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No. C 13-3554 RS (PR)
ORDER DISMISSING COMPLAINT

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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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Plaintiff may not incorporate material from the prior complaint by reference. Failure to file

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an amended complaint in accordance with this order will result in dismissal of this action

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without further 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 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

United States District Court
For the Northern District of California

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pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
DATED: January 6, 2014
RICHARD SEEBORG
United States District Judge

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No. C 13-3554 RS (PR)
ORDER DISMISSING COMPLAINT

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