Jackson v. Kelso et al

Filing 9

ORDER RECLASSIFYING CASE AND DISMISSING WITHE LEAVE TO AMEND. Amended Complaint due by 2/4/2013. Signed by Judge Phyllis J. Hamilton on 1/4/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 1/4/2013)

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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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GEORGE JACKSON,
Plaintiff,

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vs.

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ORDER RECLASSIFYING
CASE AND DISMISSING
WITH LEAVE TO AMEND

J. CLARK KELSO, et. al.,
Defendants.

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For the Northern District of California

United States District Court

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No. C 12-5046 PJH (PR)

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This case was opened when Jackson filed a habeas petition with the court (nature of

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suit 530). However, a review of the petition indicates that plaintiff is raising claims

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regarding prison conditions (nature of suit 555). The clerk shall reclassify the case on the

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docket as a civil rights case, nature of suit 555. Plaintiff has been granted leave to proceed

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in forma pauperis.

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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).

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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;

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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, 551 U.S. 89, 93 (2007) (citations

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omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained
the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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For the Northern District of California

United States District Court

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1950 (2009).

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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 alleges that his constitutional rights for medical care and his due process

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rights have been violated. However, other than stating defendants are violating the law and

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should be criminally prosecuted, plaintiff has not discussed his medical needs and how

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defendants have provided improper medical care. The complaint will be dismissed with

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leave to amend, for plaintiff to identify specific defendants and describe how they were

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deliberately indifferent to his serious medical needs. The court cannot prosecute

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defendants for violating California Penal Law, so plaintiff should not set forth such

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allegations in an amended complaint.

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CONCLUSION

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1. The clerk shall reclassify this case as a civil rights case (nature of suit 555).

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2. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed no later than February 4,

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2013, and 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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For the Northern District of California

United States District Court

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designated time will result in the dismissal of these claims.
3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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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: January 4, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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