Robertson v. Virga et al

Filing 6

ORDER ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge William H. Orrick on 04/17/2014. (jmdS, COURT STAFF) (Filed on 4/17/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RANDY DAVID RAY ROBERTSON,

Case No. 13-cv-05868-WHO (PR)

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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TIM VIRGA, 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 a pro se

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state prisoner. After having reviewed the complaint pursuant to 28 U.S.C. § 1915A(a),

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the Court DISMISSES the complaint with leave to file an amended complaint on or

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before June 1, 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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Legal Claims
Plaintiff Robertson alleges that (1) Dolly Matteuci, Executive Director of Napa

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State Hospital, violated his right to due process (and a state court order) by "arbitrarily"

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ordering Robertson transferred from a treatment hospital to prison after they had "a dispute

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over legal rights"; and (2) Tim Virga, Warden of Sacramento State Prison, housed him in

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conditions "designed to punish" after the transfer from Napa State Hospital.

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The complaint will be dismissed with leave to amend for the following reasons.

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First, his claims against Virga are DISMISSED without prejudice because they are

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unrelated to his claims against Matteuci, and the alleged events giving rise to the claims

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occurred in a different district. If Robertson wishes to seek relief through the federal

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courts on his claims against Virga, he must file in the Eastern District of California,

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wherein Sacramento State Prison lies. Second, his claims against Matteuci fail to state a

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claim for a due process violation. A prisoner has no constitutional right to incarceration in

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a particular institution. See Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983). A
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prisoner's liberty interests are sufficiently extinguished by his conviction that the state may

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

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federal prisons, without offending the Due Process Clause. See Rizzo v. Dawson, 778 F.2d

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527, 530 (9th Cir. 1985) (citing Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (intrastate

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prison transfer does not implicate Due Process Clause), and Olim, 461 U.S. at 244-48

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(interstate prison transfer does not implicate Due Process Clause)).

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Robertson’s claims against Matteuci may state a claim under the First Amendment,
however. "Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled

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United States District Court
Northern District of California

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the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005) (footnote omitted). Here, it is not sufficient to say that Matteuci transferred

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plaintiff in retaliation over a dispute over legal rights. More detail is needed in order to

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state a claim. In his amended complaint, Robertson must specify what legal rights were at

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issue and the details (dates, times, places, etc.) of the dispute with Matteuci, and allege

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specific plausible facts showing that the transfer was retaliatory.

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Robertson shall file an amended complaint on or before June 1, 2014. The first

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amended complaint must include the caption and civil case number used in this order (13-

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5868 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,

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

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and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262

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(9th Cir. 1992). He 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. He 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: April 17, 2014
_________________________
WILLIAM H. ORRICK
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

RANDY ROBERTSON,

Case Number: CV13-05868 WHO

Plaintiff,

CERTIFICATE OF SERVICE

v.
TIM VIRGA 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 April 17, 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.

Randy David Ray Robertson BKG# CC12ED845
Martinez Detention Facility D-B-6
901 Court Street
Martinez, CA 94553

Dated: April 17, 2014
Richard W. Wieking, Clerk
By: Jean Davis, Deputy Clerk