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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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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.

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No. C 10-05010 SBA (PR)

GLENN EDWARD HOPKINS,

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Plaintiff filed the instant a pro se civil rights complaint under 42 U.S.C. § 1983 while he was

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incarcerated at San Quentin State Prison, alleging "Eighth Amendment" violations. Though not

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entirely clear, Plaintiff appears to argue that statements made to him by his parole agent, Mr. Pang,

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involved the "use [of] indecent, abusive, profane, or otherwise improper language while on duty."

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(Compl. at 3.) Plaintiff also names another parole agent serving as "unit supervisor" -- Mr. A. Lee,

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who is presumably Defendant Pang's supervisor. Thus, Plaintiff appears to sue Defendant Lee based

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on supervisory liability. Plaintiff seeks monetary damages.

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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.

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STANDARD OF REVIEW

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A federal court must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). It its review, the court must identify cognizable claims and dismiss any claims that are

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frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief

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from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings

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must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1988).

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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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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. See West v. Atkins,

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487 U.S. 42, 48 (1988).

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DISCUSSION
In his complaint, Plaintiff lists, under the "Statement of Claim" section, a rule called "Section
3391" relating to "Employee Conduct," which states:

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Section 3391 - Employee Conduct

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(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.

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United States District Court
For the Northern District of California

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(Compl. at 3.) Plaintiff also attaches another page to his complaint, which includes another rule
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entitled "section 3504, parole assessment (a)(e)," which contains definitions of "Constitutional
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Rights," "Procedural Due Process," and "Deprivation of Liberty Interests." (Compl., Attach. at 1.)
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Plaintiff next lists "Title 18, Chapter 13 Civil Rights, 241 and 242," which relate to "Conspiracy
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Against Rights" and "Deprivation of Rights Under Color of Law," respectively. (Id. at 1-2.)
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However, nowhere does Plaintiff explain how Defendants Pang and Lee specifically violated his
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constitutional rights. Accordingly, as the complaint is presently written, Plaintiff fails to set forth
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allegations against the named Defendants that state a cognizable constitutional claim.
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Based on the fact that Plaintiff lists the above "Section 3391" in his complaint, he seems to
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argue that statements made to him by Defendant Pang involved the "use [of] indecent, abusive,
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profane, or otherwise improper language while on duty." (Compl. at 3.) And, as mentioned above,
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Plaintiff appears to sue Defendant Lee in his supervisory capacity for the actions of his subordinate,
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Defendant Pang. However, such conduct on the part of Defendants here does not set forth a
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constitutional violation. Therefore, to the extent that Plaintiff alleges a claim against Defendants
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based on Defendant Pang's alleges use "indecent, abusive, profane, or otherwise improper language"
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-- such a claim is DISMISSED for failure to state a claim for relief.
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As mentioned above, in the section of the complaint form where Plaintiff is asked to write

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the names of all Defendants he only names Defendants Pang and Lee; however, he does not link

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these Defendants specifically to the allegations in the body of the complaint.

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Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show

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that the defendant proximately caused the deprivation of a federally protected right. See Leer v.

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Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th

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Cir. 1981). A person deprives another of a constitutional right within the meaning of § 1983 if he

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does an affirmative act, participates in another's affirmative act or omits to perform an act which he

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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

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F.2d at 633. The inquiry into causation must be individualized and focus on the duties and

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responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation. See id. Sweeping conclusory allegations will not suffice; the plaintiff

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must instead "set forth specific facts as to each individual defendant's" deprivation of protected

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rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Accordingly, Plaintiff's claims against Defendants Pang and Lee are DISMISSED WITH

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LEAVE TO AMEND. If Plaintiff intends to pursue an exhausted claim or claims against these

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Defendants, he shall file an amended complaint containing such allegations, as directed below.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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Within thirty (30) days from the date of this Order, Plaintiff shall file an amended complaint

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to correct the pleading deficiencies set forth above. Plaintiff must use the attached civil rights form,

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write the case number for this action -- Case No. C 10-5010 SBA (PR) -- on the form, clearly label

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the complaint "Amended Complaint," and complete all sections of the form. Because an amended

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complaint completely replaces the original complaint, Plaintiff must include in it all the claims he

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S.

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915 (1992); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); London v. Coopers & Lybrand, 644

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F.2d 811, 814 (9th Cir. 1981). He may not incorporate material from the original complaint by

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reference.

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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

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G:\PRO-SE\SBA\CR.10\Hopkins5010.DWLA(parole agrent).wpd
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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GLENN EDWARD HOPKINS,
Case Number: CV10-05010 SBA

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Plaintiff,
CERTIFICATE OF SERVICE

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United States District Court
For the Northern District of California

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v.
MR PANG et al,
Defendant.

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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.

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Glenn Edward Hopkins
5419 Foothill Blvd.
Oakland, CA 94521
Dated: April 25, 2011
Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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