Moore v. Hatton et al

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Magistrate Judge Jacqueline Scott Corley on 4/14/2017. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 4/14/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOHNNY ANDREW MOORE, 7 Plaintiff, 8 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. 9 S. HATTON, et al., 10 Defendants. 11 United States District Court Northern District of California Case No.16-cv-06894-JSC 12 INTRODUCTION 13 Plaintiff, an inmate at the California Treatment Facility (“CTF”) in Soledad, California, 14 15 filed this pro se civil rights complaint under 42 U.S.C. ' 1983 against officials at CTF.1 Plaintiff’s 16 application to proceed in forma pauperis is granted in a separate order. For the reasons explained 17 below, the complaint is dismissed with leave to amend. STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 22 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 23 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 24 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 25 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 1 at 4.) 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 3 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 4 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to 5 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 6 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 7 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 8 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 9 state a claim for relief that is plausible on its face.” Id. at 1974. 10 United States District Court Northern District of California 11 12 13 To state a claim under 42 U.S.C. ' 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). LEGAL CLAIMS 14 15 16 17 18 19 20 21 22 23 24 Plaintiff alleges that he was notified of a potential breach regarding his personal health information. A laptop computer that may have included Plaintiff’s health information was stolen out of a car of a prison health care worker. The computer was password protected but was not encrypted. Plaintiff seeks money damages. The complaint asserts no violation of federal law. Plaintiff claims that Defendants violated his rights under California regulations and other provisions of state law. As he asserts no violation of a right secured by the United States Constitution or other federal law, he does not state a cognizable basis for relief under 42 U.S.C. § 1983. Plaintiff is given the opportunity to assert a violation of federal law in an amended complaint, which he must file in accordance with the instructions below. CONCLUSION 25 26 27 1. The complaint is dismissed with leave to amend. Plaintiff shall file an amended complaint within twenty eight (28) days from the date this order is filed. The amended complaint must include the caption and civil case number used in this order (No. C 16-6984 JSC 28 2 1 (PR)) and the words “COURT-ORDERED FIRST AMENDED COMPLAINT” on the first page. 2 Because an amended complaint completely replaces the original complaint, see Ferdik v. Bonzelet, 3 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material from the original by 4 reference; he must include in his amended complaint all the claims he wishes to pursue. Failure to 5 amend within the designated time and in accordance with this order will result in the dismissal of 6 this action. 7 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 8 informed of any change of address by filing a separate paper with the clerk headed “Notice of 9 Change of Address.” He also must comply with the Court's orders in a timely fashion, although he 10 United States District Court Northern District of California 11 12 13 14 may request an extension of time provided it is accompanied by a showing of good cause and it is filed on or before the deadline he wants to extend. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: April 14, 2017 15 16 JACQUELINE SCOTT CORLEY United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 3

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