Cannon v. Wilson et al
Filing
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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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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VERNON G. CANNON,
Plaintiff,
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vs.
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ORDER OF DISMISSAL WITH
LEAVE TO AMEND
SGT. WILSON, et. al.,
Defendants.
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For the Northern District of California
United States District Court
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No. C 12-5900 PJH (PR)
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Plaintiff, an inmate at Napa State Hospital, has filed a pro se civil rights complaint
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under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis.
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DISCUSSION
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A.
Standard of Review
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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
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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, 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
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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the
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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.
1937, 1950 (2009).
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For the Northern District of California
United States District Court
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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.
Legal Claims
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Plaintiff was transferred to Napa State Hospital and placed in a behavioral
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management cell due to his high risk of fire setting, by the jail classification committee.
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Plaintiff was in this cell for approximately four months and was transferred to a different
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type of cell as he was doing well. A few days later plaintiff told custody staff that he was
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feeling like setting a fire in his cell so defendant Wilson turned off the electrical power to
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plaintiff’s cell to prevent him from having an ignition source. The power was off for a day
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when defendant Gross asked plaintiff if it would be safe to turn the electricity back on.
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Plaintiff replied that it would be safe and he would tell custody staff if he felt like starting a
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fire again. Five days later plaintiff was feeling like setting a fire so he asked Wilson to tell a
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mental health official that he would like to talk to them. It is not clear from plaintiff’s
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complaint if he told Wilson that he felt like setting a fire. A mental health official came to
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plaintiff’s cell and asked if it was an emergency or if it could wait until later. Plaintiff stated it
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could wait until later, and the official would return at 7:00 pm on that day. By 8:30 pm the
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mental health official had not returned and another custody official told plaintiff that the
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mental health official was gone for the day. At 9:30 pm, plaintiff set himself and his cell on
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fire causing injuries to himself.
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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
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responded to plaintiff’s mental health needs whether it was the conditions of his cell or by
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seeking help from a medical official. Plaintiff has failed to present allegations showing that
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these defendants were deliberately indifferent to plaintiff’s medical needs or in their failure
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to protect him from himself. To the extent plaintiff has named these defendants based on
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For the Northern District of California
However, based on the allegations in the complaint, it is not clear how these defendants
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United States District Court
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his cell placement, he has not shown that these defendants were responsible for his cell
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classification or were even on the jail classification committee. While it is possible the
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mental health official could be liable, plaintiff has not named this individual as a defendant
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nor has plaintiff provided sufficient allegations to demonstrate liability on her behalf.
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Plaintiff will be provided an opportunity to amend.
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CONCLUSION
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1. 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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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
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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).
IT IS SO ORDERED.
Dated: January 4, 2013.
PHYLLIS J. HAMILTON
United States District Judge
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G:\PRO-SE\PJH\CR.12\Cannon5900.dwlta.wpd
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For the Northern District of California
United States District Court
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