Tennison-v-Minix et.al.

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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JAMES FREEMAN TENNISON,
Plaintiff,

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vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

JOE MINIX, et al.,
Defendants.

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For the Northern District of California

United States District Court

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No. C 11-1718 (PR)

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Plaintiff, a prisoner at San Quentin State Prison, has filed a pro se civil rights

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complaint under 42 U.S.C. § 1983. The complaint involves events that occurred when

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plaintiff was housed at the Alameda County Jail.

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Plaintiff’s original complaint was on the court’s form for prisoner section 1983

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complaints, but it contains no statement of his claim, just a reference to his other filing, a

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lengthy handwritten complaint not on the form. Although plaintiff gives his real name in the

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first sentence of the handwritten complaint, and lists it in the name-and-address portion of

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the form complaint, he has listed the plaintiff in the caption of both documents as “John

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Doe.” He says he has done this out of fear of retaliation if he uses his real name. It serves

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no useful purpose to use John Doe in the caption when plaintiff’s real name is easily found

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on the first page of the public documents – documents, moreover, that will be served on

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defendants if the case is allowed to proceed -- and plaintiff is no longer at the Alameda

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County Jail, where retaliation might plausibly be feared. The court therefore has used his

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real name in the caption.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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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

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For the Northern District of California

United States District Court

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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;

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the statement need only '"give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per

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curiam) (citations omitted). Although in order to state a claim a complaint “does not need

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detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his

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'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation

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of the elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.

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Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to

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state a claim for relief that is plausible on its face." Id. at 1974. The United States

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Supreme Court has recently explained the “plausible on its face” standard of Twombly:

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“While legal conclusions can provide the framework of a complaint, they must be supported

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by factual allegations. When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). However, complaints in pro se

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prisoner cases, such as this one, must be liberally construed in favor of the plaintiff when

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applying the Twombly/Iqbal pleading standard. Hebbe v. Miller, 602 F.3d 12020, 1205 (9th

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Cir. 2010).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff contends that the only defendant who is identified by name, inmate Joe

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Minix, his cellmate, attempted to poison him by putting some unknown substance on his

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head while he slept. Plaintiff has provided no facts that even suggest that Minix was acting

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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.

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For the Northern District of California

United States District Court

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Plaintiff’s other claims are against unnamed defendants, whom he describes by job

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title (“nurse,” “physician,” and so on). The court cannot, of course, serve a defendant who

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is only so identified, and even if plaintiff succeeds in amending to allege that Minix was

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acting under color of state law so as to allow the case against him to proceed, it is unlikely

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that discovery directed to Minix would reveal the names of the unidentified parties. If

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plaintiff is able to identify any of the other defendants, he should include their names in the

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amended complaint, along with an address at which they can be served.

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CONCLUSION
1. For the foregoing reasons, the complaint is DISMISSED with leave to amend, as

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indicated above, within thirty days from the date of this order. The amended complaint

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must include the caption and civil case number used in this order and the words

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AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the original complaint, plaintiff must include in it all the claims he wishes to

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not

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incorporate material from the original complaint by reference. Failure to amend within the

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designated time will result in the dismissal of these claims.

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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
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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: June 30, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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P:\PRO-SE\PJH\CR.11\TENNISON1718.DWLTA.wpd

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