Wilson

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Amended Complaint due by 2/18/2013. Signed by Judge Phyllis J. Hamilton on 1/15/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 1/15/2013)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

OAKLAND DIVISION

6
7

In re MICHAEL WILSON,
Plaintiff,

8

No. C 12-5118 PJH (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

9
/

11
For the Northern District of California

United States District Court

10

Plaintiff, an inmate at Centinela State Hospital, has filed a pro se civil rights

12

complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma

13

pauperis.

14
15
16

DISCUSSION
A.

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

17

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

18

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

19

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

20

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

21

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

22

Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

23

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of

24

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

25

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

26

grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

27

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

28

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

1

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

2

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

3

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

4

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

5

plausible on its face." Id. at 570. The United States Supreme Court has recently explained

6

the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

7

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

8

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

9

whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1950 (2009).

11
For the Northern District of California

United States District Court

10

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

12

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

13

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

14

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

15

B.

16

Legal Claims
Plaintiff has filed a letter outlining alleged violations of the Americans with Disabilities

17

Act. However, plaintiff is currently incarcerated in the Southern District of California at

18

Centinela State Prison. While plaintiff alleges violations at prior prisons, he has not

19

provided details concerning those violations and most importantly at what prisons.

20

If the acts only occurred at Centinela State Hospital, then this case will be

21

transferred to the Southern District. See 28 U.S.C. § 1391(b). The complaint will be

22

dismissed with leave to amend for plaintiff to provide more details regarding his claims and

23

where they occurred.

24

CONCLUSION

25

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

26

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

27

18, 2013, and must include the caption and civil case number used in this order and the

28

words AMENDED COMPLAINT on the first page. Because an amended complaint
2

1

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

2

wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may

3

not incorporate material from the original complaint by reference. Failure to amend within

4

the designated time will result in the dismissal of these claims.

5

2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

6

court informed of any change of address by filing a separate paper with the clerk headed

7

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

8

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

9

Federal Rule of Civil Procedure 41(b).

11
For the Northern District of California

United States District Court

10

IT IS SO ORDERED.
Dated: January 15, 2013.
PHYLLIS J. HAMILTON
United States District Judge

12
13

G:\PRO-SE\PJH\CR.12\Wilson5118.dwlta.wpd

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3