Cannon v. Wilson et al

Filing 6

ORDER OF DISMISSAL WITH 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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 VERNON G. CANNON, Plaintiff, 8 vs. 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND SGT. WILSON, et. al., Defendants. 11 For the Northern District of California United States District Court 10 No. C 12-5900 PJH (PR) / 12 Plaintiff, an inmate at Napa State Hospital, has filed a pro se civil rights complaint 13 under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. 14 DISCUSSION 15 A. Standard of Review 16 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. Legal Claims 16 Plaintiff was transferred to Napa State Hospital and placed in a behavioral 17 management cell due to his high risk of fire setting, by the jail classification committee. 18 Plaintiff was in this cell for approximately four months and was transferred to a different 19 type of cell as he was doing well. A few days later plaintiff told custody staff that he was 20 feeling like setting a fire in his cell so defendant Wilson turned off the electrical power to 21 plaintiff’s cell to prevent him from having an ignition source. The power was off for a day 22 when defendant Gross asked plaintiff if it would be safe to turn the electricity back on. 23 Plaintiff replied that it would be safe and he would tell custody staff if he felt like starting a 24 fire again. Five days later plaintiff was feeling like setting a fire so he asked Wilson to tell a 25 mental health official that he would like to talk to them. It is not clear from plaintiff’s 26 complaint if he told Wilson that he felt like setting a fire. A mental health official came to 27 plaintiff’s cell and asked if it was an emergency or if it could wait until later. Plaintiff stated it 28 could wait until later, and the official would return at 7:00 pm on that day. By 8:30 pm the 2 1 mental health official had not returned and another custody official told plaintiff that the 2 mental health official was gone for the day. At 9:30 pm, plaintiff set himself and his cell on 3 fire causing injuries to himself. 4 Plaintiff states he is suing Wilson and Gross in their individual and official capacities. are responsible for plaintiff’s injuries. According to plaintiff, these defendants promptly 7 responded to plaintiff’s mental health needs whether it was the conditions of his cell or by 8 seeking help from a medical official. Plaintiff has failed to present allegations showing that 9 these defendants were deliberately indifferent to plaintiff’s medical needs or in their failure 10 to protect him from himself. To the extent plaintiff has named these defendants based on 11 For the Northern District of California However, based on the allegations in the complaint, it is not clear how these defendants 6 United States District Court 5 his cell placement, he has not shown that these defendants were responsible for his cell 12 classification or were even on the jail classification committee. While it is possible the 13 mental health official could be liable, plaintiff has not named this individual as a defendant 14 nor has plaintiff provided sufficient allegations to demonstrate liability on her behalf. 15 Plaintiff will be provided an opportunity to amend. 16 CONCLUSION 17 1. The complaint is DISMISSED with leave to amend in accordance with the 18 standards set forth above. The amended complaint must be filed no later than February 4, 19 2013, and must include the caption and civil case number used in this order and the words 20 AMENDED COMPLAINT on the first page. Because an amended complaint completely 21 replaces the original complaint, plaintiff must include in it all the claims he wishes to 22 present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not 23 incorporate material from the original complaint by reference. Failure to amend within the 24 designated time will result in the dismissal of these claims. 25 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 26 court informed of any change of address by filing a separate paper with the clerk headed 27 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 28 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 3 1 2 3 Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: January 4, 2013. PHYLLIS J. HAMILTON United States District Judge 4 5 G:\PRO-SE\PJH\CR.12\Cannon5900.dwlta.wpd 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 4

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