O'Hines v. Freeland

Filing 6

ORDER of Dismissal with Leave to Amend. Signed by Judge Phyllis J. Hamilton on 06/12/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 6/12/2009)

1 2 3 4 5 6 7 8 9 10 vs. ILLINOIS; MISSOURI; MISSISSIPPI; 6th to 9th JUDICIAL FEDERAL DISTRICT[S]; PEACE OFFICER ASSOCIATION UNION; Correctional Officers et al. Florence, Arizona; Warden JEFF FREELAND; and Numerous DOES, Defendants. / JAMES LYNN O'HINES, Plaintiff, No. C 09-1852 PJH (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

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Plaintiff, a prisoner housed at the Arizona Department of Corrections in Florence, Arizona, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). ///

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (per curium) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. The elements of a section 1983 claim are (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). B. Legal Claims The complaint is largely incomprehensible. It does, however, have references to Sacramento, San Diego, and Los Angeles, which suggests that the intended claims might at least have some relation to California. The first step in clarifying plaintiff's complaint is for him to file it on the court's form for section 1983 prisoner complaints. Next, in filling out that form plaintiff must provide short and simple allegations of facts which, if taken as true, would state a plausible claim that his constitutional rights were violated by one or more defendants. See Fed. R.Civ.P. 8(a); Ashcroft v. Iqbal, No. 07-1015, slip op. at 15 (U.S. May 18, 2009). He also must make clear who the intended defendants are, noting that a state cannot be sued in federal court unless it has waived its immunity or congress has overridden it, Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citing Alabama v. Pugh, 438 U.S. 781 (1978)), and that there are no such entities as "6th to 9th Judicial Federal District[s]." Finally, he should note that 2

United States District Court

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For the Northern District of California

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unless defendants are named who reside in this district or claims are asserted that arose here, venue will not be correct here. CONCLUSION 1. For the foregoing reasons, the case is DISMISSED with leave to amend, as indicated above, within thirty days from the date of this order. The amended complaint must be on the court's form for prisoner 1983 complaints and must include the caption and civil case number used in this order and the words AMENDED COMPLAINT on the first page. It. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to amend within the designated time will result in the dismissal of these claims. 2. The clerk shall send plaintiff a copy of the court's prisoner section 1983 complaint form with his copy of this order. 3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address by filing a separate paper with the clerk headed "Notice of Change of Address," and must comply with the court's orders in a timely fashion. 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: June 12 , 2009. PHYLLIS J. HAMILTON United States District Judge

United States District Court

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For the Northern District of California

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