Hopkins v. Pang et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Glenn Edward Hopkins, Jr.. Signed by Judge ARMSTRONG on 4/20/11. (lrc, COURT STAFF) (Filed on 4/25/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 United States District Court For the Northern District of California ORDER OF DISMISSAL WITH LEAVE TO AMEND Plaintiff, v. PAROLE AGENT PANG, et al., Defendants. 9 10 No. C 10-05010 SBA (PR) GLENN EDWARD HOPKINS, / Plaintiff filed the instant a pro se civil rights complaint under 42 U.S.C. § 1983 while he was 11 incarcerated at San Quentin State Prison, alleging "Eighth Amendment" violations. Though not 12 entirely clear, Plaintiff appears to argue that statements made to him by his parole agent, Mr. Pang, 13 involved the "use [of] indecent, abusive, profane, or otherwise improper language while on duty." 14 (Compl. at 3.) Plaintiff also names another parole agent serving as "unit supervisor" -- Mr. A. Lee, 15 who is presumably Defendant Pang's supervisor. Thus, Plaintiff appears to sue Defendant Lee based 16 on supervisory liability. Plaintiff seeks monetary damages. 17 18 The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A. Plaintiff's motion for leave to proceed in forma pauperis has previously been granted. 19 STANDARD OF REVIEW 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). It its review, the court must identify cognizable claims and dismiss any claims that are 23 frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief 24 from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings 25 must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 26 (9th Cir. 1988). 27 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 28 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the 1 alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 2 487 U.S. 42, 48 (1988). 3 4 5 DISCUSSION In his complaint, Plaintiff lists, under the "Statement of Claim" section, a rule called "Section 3391" relating to "Employee Conduct," which states: 6 Section 3391 - Employee Conduct 7 (a) Employees shall be alert, courteous, and professional in their dealings with inmate parolees, fellow employees, visitors and members of the public. Inmates and parolees shall be addressed by their proper names, and never by derogatory or slang references. Prison numbers shall be used only with names to summon[] inmates via public address systems. Employees shall not use indecent, abusive, profane or otherwise improper language while on duty. Irresponsible of unethical conduct or conduct reflecting discredit or themselves or the department either on or off duty shall be avoided by all employees. 8 9 United States District Court For the Northern District of California 10 11 (Compl. at 3.) Plaintiff also attaches another page to his complaint, which includes another rule 12 entitled "section 3504, parole assessment (a)(e)," which contains definitions of "Constitutional 13 Rights," "Procedural Due Process," and "Deprivation of Liberty Interests." (Compl., Attach. at 1.) 14 Plaintiff next lists "Title 18, Chapter 13 Civil Rights, 241 and 242," which relate to "Conspiracy 15 Against Rights" and "Deprivation of Rights Under Color of Law," respectively. (Id. at 1-2.) 16 However, nowhere does Plaintiff explain how Defendants Pang and Lee specifically violated his 17 constitutional rights. Accordingly, as the complaint is presently written, Plaintiff fails to set forth 18 allegations against the named Defendants that state a cognizable constitutional claim. 19 Based on the fact that Plaintiff lists the above "Section 3391" in his complaint, he seems to 20 argue that statements made to him by Defendant Pang involved the "use [of] indecent, abusive, 21 profane, or otherwise improper language while on duty." (Compl. at 3.) And, as mentioned above, 22 Plaintiff appears to sue Defendant Lee in his supervisory capacity for the actions of his subordinate, 23 Defendant Pang. However, such conduct on the part of Defendants here does not set forth a 24 constitutional violation. Therefore, to the extent that Plaintiff alleges a claim against Defendants 25 based on Defendant Pang's alleges use "indecent, abusive, profane, or otherwise improper language" 26 -- such a claim is DISMISSED for failure to state a claim for relief. 27 28 2 1 As mentioned above, in the section of the complaint form where Plaintiff is asked to write 2 the names of all Defendants he only names Defendants Pang and Lee; however, he does not link 3 these Defendants specifically to the allegations in the body of the complaint. 4 Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show 5 that the defendant proximately caused the deprivation of a federally protected right. See Leer v. 6 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th 7 Cir. 1981). A person deprives another of a constitutional right within the meaning of § 1983 if he 8 does an affirmative act, participates in another's affirmative act or omits to perform an act which he 9 is legally required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 United States District Court For the Northern District of California 10 F.2d at 633. The inquiry into causation must be individualized and focus on the duties and 11 responsibilities of each individual defendant whose acts or omissions are alleged to have caused a 12 constitutional deprivation. See id. Sweeping conclusory allegations will not suffice; the plaintiff 13 must instead "set forth specific facts as to each individual defendant's" deprivation of protected 14 rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 15 Accordingly, Plaintiff's claims against Defendants Pang and Lee are DISMISSED WITH 16 LEAVE TO AMEND. If Plaintiff intends to pursue an exhausted claim or claims against these 17 Defendants, he shall file an amended complaint containing such allegations, as directed below. 18 CONCLUSION 19 For the foregoing reasons, the Court orders as follows: 20 Within thirty (30) days from the date of this Order, Plaintiff shall file an amended complaint 21 to correct the pleading deficiencies set forth above. Plaintiff must use the attached civil rights form, 22 write the case number for this action -- Case No. C 10-5010 SBA (PR) -- on the form, clearly label 23 the complaint "Amended Complaint," and complete all sections of the form. Because an amended 24 complaint completely replaces the original complaint, Plaintiff must include in it all the claims he 25 wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 26 915 (1992); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); London v. Coopers & Lybrand, 644 27 28 3 1 F.2d 811, 814 (9th Cir. 1981). He may not incorporate material from the original complaint by 2 reference. 3 4 5 6 7 8 9 Plaintiff's failure to file an amended complaint within the thirty-day deadline will result in the dismissal of this action without prejudice. The Clerk of the Court is directed to send Plaintiff a blank civil rights complaint form with his copy of this Order. IT IS SO ORDERED. DATED: 4/20/11 SAUNDRA BROWN ARMSTRONG United States District Judge 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 G:\PRO-SE\SBA\CR.10\Hopkins5010.DWLA(parole agrent).wpd 4 1 2 3 4 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 GLENN EDWARD HOPKINS, Case Number: CV10-05010 SBA 7 Plaintiff, CERTIFICATE OF SERVICE 8 9 United States District Court For the Northern District of California 10 v. MR PANG et al, Defendant. / 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on April 25, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 19 20 Glenn Edward Hopkins 5419 Foothill Blvd. Oakland, CA 94521 Dated: April 25, 2011 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\CR.10\Hopkins5010.DWLA(parole agrent).wpd 5

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