Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 6/30/11. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 6/30/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 JAMES FREEMAN TENNISON, Plaintiff, 8 vs. 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND JOE MINIX, et al., Defendants. 11 For the Northern District of California United States District Court 10 No. C 11-1718 (PR) / 12 13 Plaintiff, a prisoner at San Quentin State Prison, has filed a pro se civil rights 14 complaint under 42 U.S.C. § 1983. The complaint involves events that occurred when 15 plaintiff was housed at the Alameda County Jail. 16 Plaintiff’s original complaint was on the court’s form for prisoner section 1983 17 complaints, but it contains no statement of his claim, just a reference to his other filing, a 18 lengthy handwritten complaint not on the form. Although plaintiff gives his real name in the 19 first sentence of the handwritten complaint, and lists it in the name-and-address portion of 20 the form complaint, he has listed the plaintiff in the caption of both documents as “John 21 Doe.” He says he has done this out of fear of retaliation if he uses his real name. It serves 22 no useful purpose to use John Doe in the caption when plaintiff’s real name is easily found 23 on the first page of the public documents – documents, moreover, that will be served on 24 defendants if the case is allowed to proceed -- and plaintiff is no longer at the Alameda 25 County Jail, where retaliation might plausibly be feared. The court therefore has used his 26 real name in the caption. 27 /// 28 /// 1 2 3 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 4 seek redress from a governmental entity or officer or employee of a governmental entity. 5 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 6 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 7 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 8 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 9 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 11 For the Northern District of California United States District Court 10 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 12 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 13 grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per 14 curiam) (citations omitted). Although in order to state a claim a complaint “does not need 15 detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 16 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation 17 of the elements of a cause of action will not do. . . . Factual allegations must be enough to 18 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. 19 Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to 20 state a claim for relief that is plausible on its face." Id. at 1974. The United States 21 Supreme Court has recently explained the “plausible on its face” standard of Twombly: 22 “While legal conclusions can provide the framework of a complaint, they must be supported 23 by factual allegations. When there are well-pleaded factual allegations, a court should 24 assume their veracity and then determine whether they plausibly give rise to an entitlement 25 to relief.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). However, complaints in pro se 26 prisoner cases, such as this one, must be liberally construed in favor of the plaintiff when 27 applying the Twombly/Iqbal pleading standard. Hebbe v. Miller, 602 F.3d 12020, 1205 (9th 28 Cir. 2010). 2 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 2 elements: (1) that a right secured by the Constitution or laws of the United States was 3 violated, and (2) that the alleged deprivation was committed by a person acting under the 4 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 5 B. 6 Legal Claims Plaintiff contends that the only defendant who is identified by name, inmate Joe 7 Minix, his cellmate, attempted to poison him by putting some unknown substance on his 8 head while he slept. Plaintiff has provided no facts that even suggest that Minix was acting 9 under color of state law, an element of a section 1983 claim. This claim will be dismissed with leave to amend to allege such facts, if they exist. 11 For the Northern District of California United States District Court 10 Plaintiff’s other claims are against unnamed defendants, whom he describes by job 12 title (“nurse,” “physician,” and so on). The court cannot, of course, serve a defendant who 13 is only so identified, and even if plaintiff succeeds in amending to allege that Minix was 14 acting under color of state law so as to allow the case against him to proceed, it is unlikely 15 that discovery directed to Minix would reveal the names of the unidentified parties. If 16 plaintiff is able to identify any of the other defendants, he should include their names in the 17 amended complaint, along with an address at which they can be served. 18 19 CONCLUSION 1. For the foregoing reasons, the complaint is DISMISSED with leave to amend, as 20 indicated above, within thirty days from the date of this order. The amended complaint 21 must include the caption and civil case number used in this order and the words 22 AMENDED COMPLAINT on the first page. Because an amended complaint completely 23 replaces the original complaint, plaintiff must include in it all the claims he wishes to 24 present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not 25 incorporate material from the original complaint by reference. Failure to amend within the 26 designated time will result in the dismissal of these claims. 27 28 2. 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 3 1 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 2 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 3 Federal Rule of Civil Procedure 41(b). 4 5 IT IS SO ORDERED. Dated: June 30, 2011. PHYLLIS J. HAMILTON United States District Judge 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\PJH\CR.11\TENNISON1718.DWLTA.wpd 4

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