Weaver v. First Watch, PBSP

Filing 7

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 6/13/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 6/13/2014)

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1 *E-Filed 6/13/14* 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION United States District Court For the Northern District of California 10 11 WILLIE WEAVER, Plaintiff, 12 ORDER OF DISMISSAL v. 13 14 No. C 14-0453 RS (PR) CAPTAIN, et al., Defendants. 15 / 16 INTRODUCTION 17 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 18 19 prisoner against his jailors at Pelican Bay State Prison. The original complaint was 20 dismissed with leave to file an amended complaint. Plaintiff’s amended complaint fails to 21 correct the deficiencies of the first, and is DISMISSED without prejudice. DISCUSSION 22 23 24 A. Standard of Review A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 25 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 26 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 27 plausibility when the plaintiff pleads factual content that allows the court to draw the 28 No. C 14-0453 RS (PR) ORDER OF DISMISSAL 1 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 2 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 3 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 4 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 6 that a right secured by the Constitution or laws of the United States was violated, and 7 that the alleged violation was committed by a person acting under the color of state law. See 8 West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. (1) (2) Legal Claims United States District Court For the Northern District of California 10 Plaintiff alleges in his amended complaint that he is awakened at night by “bad air” 11 coming through the vents that is causing him to cough. He asserts that he filed complaints 12 with prison officials regarding this state of affairs. These allegations do not contain 13 sufficient factual matter to state a claim for relief. First, he fails to allege specific facts 14 indicating that a prison official knows that a prisoner faces a substantial risk of serious harm 15 and disregards that risk by failing to take reasonable steps to abate it. Allegations of “bad 16 air” and coughing do not indicate that defendants knew that plaintiff faced a substantial risk 17 of serious harm and disregarded that risk. See Farmer v. Brennan, 511 U. S. 825, 837 18 (1994). Second, naming First Watch as defendants does not show that these defendants were 19 responsible for or caused the bad air. 20 Accordingly, this civil rights action is DISMISSED without prejudice. Plaintiff may 21 move to reopen the action. Any such motion must contain an amended complaint addressing 22 and curing the serious deficiencies described in this order. The Clerk shall enter judgment in 23 favor of defendants, and close the file. 24 IT IS SO ORDERED. 25 DATED: June 13, 2014 RICHARD SEEBORG United States District Judge 26 27 28 No. C 14-0453 RS (PR) ORDER OF DISMISSAL 2

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