Weaver v. Breakfast Egg et al
Filing
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ORDER REOPENING CASE; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 6/23/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 6/23/2014)
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*E-Filed 6/23/14*
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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WILLIE WEAVER,
Plaintiff,
United States District Court
For the Northern District of California
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ORDER REOPENING ACTION;
v.
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No. C 14-0732 RS (PR)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
BREAKFAST EGG, et al.,
Defendants.
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INTRODUCTION
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This federal civil rights action was dismissed because plaintiff failed to pay the filing
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fee or file an application to proceed in forma pauperis (“IFP”). Plaintiff since has filed an
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IFP application. Consequently, the action is REOPENED, and the Clerk is directed to amend
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the docket accordingly. The judgment (Docket No. 4) and the order of dismissal (Docket No.
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3) are VACATED. After reviewing the complaint pursuant to 28 U.S.C. § 1915A(a), the
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Court DISMISSES the complaint with leave to file an amended complaint on or before
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August 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 14-0732 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 claims that on February 7, 2014 he received a cold breakfast and an uncooked
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egg. The complaint will be dismissed with leave to amend for the following reasons. First,
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he has not established liability because he fails to name who was responsible for the
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preparation of his food. Second, contrary to his contentions, his allegations do not state a
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claim for deliberate indifference. To state a claim for deliberate indifference, a prisoner-
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plaintiff must allege specific facts indicating that a prison official knows that a prisoner faces
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a substantial risk of serious harm and disregards that risk by failing to take reasonable steps
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to abate it. See Farmer v. Brennan, 511 U. S. 825, 837 (1994).
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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 August 1, 2014. The first amended complaint must include
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the caption and civil case number used in this order (14-0732 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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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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No. C 14-0732 RS (PR)
ORDER DISMISSING COMPLAINT
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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).
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IT IS SO ORDERED.
DATED: June 23, 2014
RICHARD SEEBORG
United States District Judge
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United States District Court
For the Northern District of California
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No. C 14-0732 RS (PR)
ORDER DISMISSING COMPLAINT
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