Smith v. C.D.C.R

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge JEFFREY S. WHITE on 10/3/13. (jjoS, COURT STAFF) (Filed on 10/3/2013)

1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT

7
8

FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
10
11
12
13
14
15
16

FLEMING SMITH,

)
)
Plaintiff,
)
)
v.
)
)
J. CLARK KELSO, Receiver; DONALD )
SPECTOR, Prison Law Office;
)
MICHAEL BEIN; C.D.C.R.,
)
)
Defendants.
)
__________________________________ )

No. C 13-3738 JSW (PR)

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

17
18
19

INTRODUCTION
Plaintiff, a California prisoner at the California Training Facility (“CTF”), filed

20

this pro se civil rights complaint under 42 U.S.C. § 1983. His application to proceed in

21

forma pauperis is granted in a separate order. The complaint is dismissed with leave to

22

amend.

23
24

STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

25

of the claim showing that the pleader is entitled to relief." "Specific facts are not

26

necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

27

is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200

28

(2007) (citations omitted). Although in order to state a claim a complaint “does not need

1

detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

2

'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic

3

recitation of the elements of a cause of action will not do. . . . Factual allegations must

4

be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.

5

Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer

6

"enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se

7

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

8

699 (9th Cir. 1990).

9

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements:

10

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

11

(2) that the alleged violation was committed by a person acting under the color of state

12

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

13
14

Plaintiff sues the receiver appointed by Judge Henderson in Plata v.

15

Schwarzenegger, No. C 01-1351 TEH, to oversee the delivery of medical care to

16

prisoners incarcerated by the California Department of Corrections and Rehabilitation

17

(“C.D.C.R.”). He also sues two lawyers representing the plaintiffs in that case, as well as

18

the C.D.C.R. itself.

19

“suffering from multiple medical disorders.” It appears that Plaintiff is complaining

20

about the medical care he is receiving, and that he believes both the C.D.C.R. and the

21

receiver are responsible for such care. But he does not allege what medical problems he

22

has, what care he received or failed to receive, what involvement each of the Defendants

23

had in his medical care. Absent such allegations, he does not state a “plausible” claim

24

that Defendants violated his constitutional rights. He will be given leave to file an

25

amended complaint in which he explains what actions each of the Defendants took or

26

failed to take and how such actions or inactions caused him to suffer inadequate medical

Plaintiff only makes a single, generalized allegation that he is

27
28

2

1

care that amounted to a denial of his Eighth Amendment rights. He states that more

2

information is “on file” with the Appeals Coordinators at various prisons, but he must

3

include such information in his amended complaint if he wants it to be considered part of

4

this action.
CONCLUSION

5
6

This case is DISMISSED WITH LEAVE TO AMEND.

7

Plaintiff shall file an amended complaint within twenty eight (28) days from the

8

date this order is filed. Plaintiff is advised to use the Court’s complaint form. The

9

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

10

(No. C 13-3738 JSW (PR)) and the words “COURT-ORDERED FIRST AMENDED

11

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

12

the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992),

13

Plaintiff may not incorporate material from the original by reference. Failure to amend

14

within the designated time and in accordance with this order will result in the dismissal

15

of this action.

16
17

IT IS SO ORDERED.
DATED: October 3, 2013

18
19

JEFFREY S. WHITE
United States District Judge

20
21
22
23
24
25
26
27
28

3

1

UNITED STATES DISTRICT COURT

2

FOR THE

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
FLEMING SMITH,

Case Number: CV13-03738 JSW

6
Plaintiff,

CERTIFICATE OF SERVICE

7
v.

8
CDCR et al,

9
Defendant.

10
11
12
13
14

/

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 October 3, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Fleming Smith
N.C.D.F.
2254 Ordinance Road
Santa Rosa, CA 95403
Dated: October 3, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk