Barros v. Beard

Filing 5

ORDER of Dismissal with Leave to Amend. Signed by Judge Jeffrey S. White on 11/8/13. (jjoS, COURT STAFF) (Filed on 11/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN BARROS,

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Plaintiff,
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v.
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JEFFREY BEARD,
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Defendant.
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No. C 13-4162 JSW (PR)
ORDER DISMISSAL WITH
LEAVE TO AMEND

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INTRODUCTION
Plaintiff, a California prisoner at Salinas Valley State Prison, filed this pro se civil

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rights complaint under 42 U.S.C. § 1983.1 His application to proceed in forma pauperis

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

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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He filed a request for emergency injunctive relief (dkt. 1), but as he had no pending
case, the request is construed as a complaint.

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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

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

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

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

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

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

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

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

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

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

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

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

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699 (9th Cir. 1990).

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

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

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

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

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LEGAL CLAIMS
Plaintiff alleges that prison officials are planning to transfer over 500 inmates

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from his prison to Avenal State Prison. He alleges that there is a prevalence of “valley

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fever” at Avenal, and that a transfer to that prison presents a grave risk of contracting the

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illness. A prisoner's liberty interests are sufficiently extinguished by his conviction that

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the state may generally confine or transfer him to any of its institutions, to prisons in

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another state or to federal prisons, without offending the Constitution. Rizzo v. Dawson,

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778 F.2d 527, 530 (9th Cir. 1985). A transfer, therefore, in and of itself is not actionable

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under Section 1983. Nevertheless, prison officials’ deliberate indifference to an inmate’s

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serious medical needs or to their safety violates the Eighth Amendment's proscription

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against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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Therefore, to the extent the transfer amounts to deliberate indifference to an inmate’s

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serious medical needs or safety, it is actionable. The trouble with the complaint,

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however, is that Plaintiff does that he has been or will be one of the inmates selected to

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be transferred to Avenal. As a result, it cannot be discerned how the transfer risks his

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safety or medical needs, or how it otherwise affects him. Consequently, the complaint

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will be dismissed, but Plaintiff will be granted leave to file an amended complaint in

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which he alleges how he is affected by Defendant’s actions and how Defendant is

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violating his constitutional rights.

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CONCLUSION

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This case is DISMISSED WITH LEAVE TO AMEND.

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

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

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

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(No. C 13-4162 JSW (PR)) and the words “COURT-ORDERED FIRST AMENDED

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

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

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

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

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of this action.

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IT IS SO ORDERED.

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DATED: November 8, 2013
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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN BARROS,

Case Number: CV13-04162 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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JEFFREY BEARD et al,

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Defendant.

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/

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 November 8, 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.

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John Barros
J59462
P.O. Box 705
Soledad, CA 93960
Dated: November 8, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk