Weaver v. Breakfast Egg et al

Filing 6

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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1 *E-Filed 6/23/14* 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN FRANCISCO DIVISION 8 9 WILLIE WEAVER, Plaintiff, United States District Court For the Northern District of California 10 ORDER REOPENING ACTION; v. 11 12 No. C 14-0732 RS (PR) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND BREAKFAST EGG, et al., Defendants. 13 / 14 INTRODUCTION 15 This federal civil rights action was dismissed because plaintiff failed to pay the filing 16 17 fee or file an application to proceed in forma pauperis (“IFP”). Plaintiff since has filed an 18 IFP application. Consequently, the action is REOPENED, and the Clerk is directed to amend 19 the docket accordingly. The judgment (Docket No. 4) and the order of dismissal (Docket No. 20 3) are VACATED. After reviewing the complaint pursuant to 28 U.S.C. § 1915A(a), the 21 Court DISMISSES the complaint with leave to file an amended complaint on or before 22 August 1, 2014. DISCUSSION 23 24 25 A. Standard of Review A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 26 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 27 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 28 No. C 14-0732 RS (PR) ORDER DISMISSING COMPLAINT 1 plausibility when the plaintiff pleads factual content that allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 3 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 4 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 5 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 7 that a right secured by the Constitution or laws of the United States was violated, and 8 that the alleged violation was committed by a person acting under the color of state law. See 9 West v. Atkins, 487 U.S. 42, 48 (1988). United States District Court For the Northern District of California 10 11 B. (1) (2) Legal Claims Plaintiff claims that on February 7, 2014 he received a cold breakfast and an uncooked 12 egg. The complaint will be dismissed with leave to amend for the following reasons. First, 13 he has not established liability because he fails to name who was responsible for the 14 preparation of his food. Second, contrary to his contentions, his allegations do not state a 15 claim for deliberate indifference. To state a claim for deliberate indifference, a prisoner- 16 plaintiff must allege specific facts indicating that a prison official knows that a prisoner faces 17 a substantial risk of serious harm and disregards that risk by failing to take reasonable steps 18 to abate it. See Farmer v. Brennan, 511 U. S. 825, 837 (1994). 19 Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an 20 amended complaint on or before August 1, 2014. The first amended complaint must include 21 the caption and civil case number used in this order (14-0732 RS (PR)) and the words FIRST 22 AMENDED COMPLAINT on the first page. Because an amended complaint completely 23 replaces the previous complaints, plaintiff must include in his first amended complaint all the 24 claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v. 25 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from 26 the prior complaint by reference. Failure to file an amended complaint in accordance with 27 this order will result in dismissal of this action without further notice to plaintiff. 28 No. C 14-0732 RS (PR) ORDER DISMISSING COMPLAINT 2 1 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 2 informed of any change of address by filing a separate paper with the clerk headed “Notice of 3 Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for 4 an extension of time to do so. Failure to comply may result in the dismissal of this action 5 pursuant to Federal Rule of Civil Procedure 41(b). 6 7 IT IS SO ORDERED. DATED: June 23, 2014 RICHARD SEEBORG United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C 14-0732 RS (PR) ORDER DISMISSING COMPLAINT 3

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