Whitaker v. Saleem et al

Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Amended Complaint due by 3/25/2013. Signed by Judge Phyllis J. Hamilton on 2/20/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 2/20/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 WHITAKER, Plaintiff, 8 vs. 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND DR. M. SALEEM, et. al., Defendants. 11 For the Northern District of California United States District Court 10 No. C 13-0113 PJH (PR) / 12 Plaintiff, a state prisoner currently incarcerate at Salinas Valley State Prison, has 13 filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to 14 proceed in forma pauperis. 15 DISCUSSION 16 A. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 22 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 23 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 25 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 26 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 27 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 28 omitted). Although in order to state a claim a complaint “does not need detailed factual 1 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 4 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 5 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 6 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 7 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 8 framework of a complaint, they must be supported by factual allegations. When there are 9 well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct. 11 For the Northern District of California United States District Court 10 1937, 1950 (2009). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 12 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. Legal Claims 17 Plaintiff first states that defendant Ford denied him food, because he would not talk 18 to him and took his yard and canteen privileges. Plaintiff provides no other information on 19 these claims and they are insufficient pursuant to Iqbal, but plaintiff will be provided an 20 opportunity to file an amended complaint with additional information.1 Plaintiff next alleges 21 that defendant Dr. Saleem gave false testimony in a Keyhea2 hearing, by falsely stating that 22 plaintiff had threatened staff. As a result, plaintiff was involuntarily administered 23 1 24 25 Plaintiff also raises claims regarding his legal materials at a prison in Sacramento that resides in the Eastern District of California. Claims unrelated to the events at Salinas Valley State Prison that occurred in Sacramento must be brought in the Eastern District of California. 2 26 27 28 In Keyhea v. Rushen, 178 Cal.App.3d 526 (1986), the state appellate court “upheld a consent decree affirming the right of state prisoners to refuse antipsychotic medications except under certain limited circumstances.” In re Qawi, 32 Cal.4th 1, 21 (2004). Under California law, the Keyhea procedures govern the involuntary administration of antipsychotic medications. 2 1 psychotropic medication. Plaintiff only seeks money damages. 2 Plaintiff includes a transcript of the Keyhea hearing (Docket No. 6), where he was 3 represented by counsel, testified on his own behalf but the administrative law judge 4 ultimately found based on the totality of the evidence that plaintiff was a danger to others 5 and needed to be medicated. To the extent plaintiff is asserting a due process violation, he 6 has failed to sufficiently articulate such a violation. “[T]he Due Process clause permits the 7 State to treat a prison inmate who has a serious mental illness, with antipsychotic drugs 8 against his will, if the inmate is dangerous to himself or others and the treatment is in the 9 inmate's medical interest” as long as the decision to medicate against his will is neither arbitrary, nor erroneous, and comports with procedural due process. Washington v. 11 For the Northern District of California United States District Court 10 Harper, 494 U.S. 210, 227-29 1990). Simply stating that a witness lied, fails to 12 demonstrate a violation of due process. The complaint will be dismissed but plaintiff may 13 file an amended complaint. 14 CONCLUSION 15 1. The complaint is DISMISSED with leave to amend in accordance with the 16 standards set forth above. The amended complaint must be filed no later than March 25, 17 2013, and must include the caption and civil case number used in this order and the words 18 AMENDED COMPLAINT on the first page. Because an amended complaint completely 19 replaces the original complaint, plaintiff must include in it all the claims he wishes to 20 present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not 21 incorporate material from the original complaint by reference. Failure to amend within the 22 designated time will result in the dismissal of this case. 23 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 24 court informed of any change of address by filing a separate paper with the clerk headed 25 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 26 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 27 Federal Rule of Civil Procedure 41(b). 28 /// 3 1 2 IT IS SO ORDERED. Dated: February 20, 2013. PHYLLIS J. HAMILTON United States District Judge 3 4 G:\PRO-SE\PJH\CR.13\Whittaker.dwlta.wpd 5 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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