Hopkins v. Contra Costa County et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge William H. Orrick on 01/27/2014. Plaintiff shall file an amended complaint on or before March 24, 2014. (jmdS, COURT STAFF) (Filed on 1/27/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN L. HOPKINS,

Case No. 13-cv-03620-WHO

United States District Court
Northern District of California

Plaintiff,
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v.

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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CONTRA COSTA COUNTY, et al.,
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 Kevin

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Hopkins, a pro se state prisoner. After having reviewed the complaint pursuant to 28

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U.S.C. § 1915A(a), the Court DISMISSES the complaint with leave to file an

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amended complaint on or before March 24, 2014.
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed.

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See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

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facial 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

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably
be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55

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United States District Court
Northern District of California

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(9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Plaintiff’s Complaint
Hopkins appears to be asserting claims involving his treatment in jail facilities run

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by the Contra Costa Sheriff’s Department and in a residential treatment program. He

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generally alleges that Contra Costa County Sheriff David O. Livingston was deliberately

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indifferent and failed to train, monitor, supervise and adequately discipline deputies in

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ways that violated plaintiff’s First Amendment and other constitutional rights, but Sheriff

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Livingston is not named in any of the causes of action alleged. Hopkins asserts in his First

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Cause of Action that Deputy Crose used "unprofessional language" toward him and later

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filed a false disciplinary report, an act of retaliation that caused plaintiff to spend three

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days in isolation and then to be transferred to another facility. In the Second Cause of

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Action, Hopkins asserts that Deputy Chilimondes screamed obscenities at him. In the

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Third Cause of Action, Hopkins asserts that Deputy Martinez used excessive force by

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shoving him. In the Fifth Cause of Action, Hopkins alleges deliberate indifference to

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serious medical needs because the jail confiscated an orthopedic device, causing serious
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injury to his knee.
Hopkins states in his Fourth Cause of Action that employees of a residential

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program to which he had been sent to by the state court, in a conspiracy with the state

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court, violated his constitutional rights when they terminated him from the program for

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medical reasons.

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C.

Analysis
This Order dismisses the Complaint with leave to amend in part because of

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misjoinder and in part for failure to state a claim. The basis for the Order is explained

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below.

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A party asserting a claim may join as many claims as it has against an opposing

United States District Court
Northern District of California

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party in one lawsuit. Fed. R. Civ. P. 18(a). The Court may allow claims to be joined if

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they arise out of the same transaction, occurrence, or series of transactions or occurrences.

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Fed. R. Civ. P. 20. On the other hand, joinder is not appropriate when transactions are

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separate and the defendants are different.

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Here, the Fourth Cause of Action is stated against the residential program and the

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state court. It is unrelated to the claims against the sheriff’s department. Accordingly, it is

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not properly joined in this action and is DISMISSED. Plaintiff may raise this claim in a

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separate civil rights action if he so chooses.

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As written, the Complaint does not explicitly name Sheriff Livingston as a

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defendant in any cause of action, although it appears that Hopkins wishes to hold him

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responsible for all of the events that occurred in the jail. For that reason, it is possible that

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the otherwise unrelated series of transactions could be related. At this stage, the Court will

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not dismiss the other causes of action for misjoinder.

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However, the Court will dismiss the Complaint for failure to state a claim. There

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are several defects. First, the Second Cause of Action and the portion of the First Cause of

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Action asserting that Deputy Crose used “unprofessional language,” are DISMISSED

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without leave to amend. Verbal abuse and name-calling do not rise to the level of a

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constitutional violation. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).
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Second, the remaining causes of action are DISMISSED with leave to amend

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because they lack the specificity necessary to determine if any constitutional violation can

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plausibly be alleged and if the claims should be joined at all. The Complaint should

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include details that would demonstrate Sheriff Livingston’s involvement in any of the acts

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alleged, as well as any other facts relevant to the filing of the disciplinary report, the

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alleged excessive force, the length of time Hopkins did not have the orthopedic device and

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the impact on Hopkins of not having it, and any other facts that could establish plaintiff’s

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claims.

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Plaintiff shall file an amended complaint on or before March 24, 2014. The
first amended complaint must include the caption and civil case number used in this order

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United States District Court
Northern District of California

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(13-3620 WHO (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

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

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the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

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1992). Plaintiff may not incorporate material from the prior complaint by reference.

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Failure to file an amended complaint in accordance with this order will result in dismissal

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of this action 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

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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

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

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IT IS SO ORDERED.
Dated: January 27, 2014
_________________________
WILLIAM H. ORRICK
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

KEVIN L HOPKINS,

Case Number: CV13-03620 WHO

Plaintiff,

CERTIFICATE OF SERVICE

v.
CONTRA COSTA COUNTY et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on January 27, 2014, I SERVED a true and correct copy of the attached, by placing said
copy in a postage paid envelope addressed to the person hereinafter listed, by depositing said
envelope in the U.S. Mail.

Kevin L. Hopkins
V76611
CSP-Solano II
P.O. Box 4000
Vacaville, CA 95696-4000

Dated: January 27, 2014
Richard W. Wieking, Clerk
By: Jean Davis, Deputy Clerk