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)

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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

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