Weaver v. Maintenance B-3

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 5/20/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 5/20/2014)

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*E-Filed 5/20/14*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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WILLIE WEAVER,
Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

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No. C 14-0346 RS (PR)

MAINTENANCE B-3,
Defendant.

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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 against his jailors at Pelican Bay State Prison. After reviewing the complaint

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pursuant to 28 U.S.C. § 1915A(a), the Court DISMISSES the complaint with leave to file an

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amended complaint on or before July 1, 2014.
DISCUSSION

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A.

Standard of Review
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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No. C 14-0342 RS (PR)
ORDER DISMISSING COMPLAINT

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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

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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).

United States District Court
For the Northern District of California

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B.

(1)
(2)

Legal Claims
Plaintiff alleges that his constitutional rights are being violated by his having to use

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the same shower as fourteen other persons, another shower having been broken for 3 months.

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These allegations do not contain sufficient factual matter to state a claim for relief. While the

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Eighth Amendment guarantees an inmate's right to maintaining personal hygiene, see

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Toussaint v. McCarthy, 597 F. Supp. 1388, 1411 (N.D. Cal. 1984), plaintiff has failed to state

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any specific facts that having to share a shower with many others prevents him from enjoying

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this right. Plaintiff also has failed to allege any specific facts indicating deliberate

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indifference, which entails a showing that a prison official knows that a prisoner faces a

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substantial risk of serious harm and disregards that risk by failing to take reasonable steps to

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abate it. See Farmer v. Brennan, 511 U. S. 825, 837 (1994). Also, plaintiff needs to name

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specific persons responsible for the alleged acts, and what specific actions these persons took

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or failed to take. Listing “Maintence B-3” as a defendant is not sufficient.

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Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an

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amended complaint on or before July 1, 2014. The first amended complaint must include the

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caption and civil case number used in this order (14-0346 RS (PR)) and the words FIRST

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AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the previous complaints, plaintiff must include in his first amended complaint all the

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No. C 14-0342 RS (PR)
ORDER DISMISSING COMPLAINT

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claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from

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the prior complaint by reference. Failure to file an amended complaint in accordance with

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this order will result in dismissal 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 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

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

United States District Court
For the Northern District of California

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IT IS SO ORDERED.
DATED: May 20, 2014
RICHARD SEEBORG
United States District Judge

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No. C 14-0342 RS (PR)
ORDER DISMISSING COMPLAINT

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