Davis v. Brown et al

Filing 5

ORDER OF DISMISAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 7/21/17. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 7/21/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM PRESTON DAVIS, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-03599-PJH ORDER OF DISMISSAL WITH LEAVE TO AMEND v. JERRY BROWN, et al., Defendants. 12 13 14 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. DISCUSSION 15 16 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 21 may be granted, or seek monetary relief from a defendant who is immune from such 22 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 23 Pacifica Police 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 25 of the claim showing that the pleader is entitled to relief." "Specific facts are not 26 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 27 is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) 28 (citations omitted). Although in order to state a claim a complaint “does not need detailed 1 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 2 to relief' requires more than labels and conclusions, and a formulaic recitation of the 3 elements of a cause of action will not do. . . . Factual allegations must be enough to 4 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 6 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 7 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 8 conclusions can provide the framework of a complaint, they must be supported by factual 9 allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 11 United States District Court Northern District of California 10 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 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 LEGAL CLAIMS 17 Plaintiff argues that California Legislature violates the Ex Post Facto clause of the 18 state and federal constitutions when it modifies penal code sections. He argues that 19 state officials bow to public pressure and modify laws to extend limits for certain crimes. 20 For relief plaintiff seeks the court to influence state officials to follow the state constitution. 21 Plaintiff’s argument fails to state claim that is plausible on its face. The complaint 22 is dismissed with leave to amend. If plaintiff wishes to challenge a specific instance 23 where his constitutional rights were violated he should provide more information about 24 that instance. His general and vague allegations that state officials are violating the 25 constitution are insufficient. 26 CONCLUSION 27 1. The complaint is DISMISSED with leave to amend in accordance with the 28 standards set forth above. The amended complaint must be filed no later than August 2 1 24, 2017, and must include the caption and civil case number used in this order and the 2 words AMENDED COMPLAINT on the first page. Because an amended complaint 3 completely replaces the original complaint, plaintiff must include in it all the claims he 4 wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may 5 not incorporate material from the original complaint by reference. Failure to file an 6 7 8 9 10 United States District Court Northern District of California 11 12 13 amended complaint may result in dismissal of this case. 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address by filing a separate paper with the clerk headed “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: July 21, 2017 14 15 16 PHYLLIS J. HAMILTON United States District Judge 17 \\candoak.cand.circ9.dcn\data\users\PJHALL\_psp\2017\2017_03599_Davis_v_Brown_(PSP)\17-cv-03599-PJH-dwlta.docx 18 19 20 21 22 23 24 25 26 27 28 3 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 WILLIAM PRESTON DAVIS, Case No. 17-cv-03599-PJH Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 8 JERRY BROWN, et al., Defendants. 9 10 United States District Court Northern District of California 11 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 12 13 14 15 16 That on July 21, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 17 18 19 William Preston Davis ID: AT-4428 Mule Creek State Prison C-15,216 P.O. Box 409060 Ione, CA 95640 20 21 22 Dated: July 21, 2017 23 24 Susan Y. Soong Clerk, United States District Court 25 26 27 28 By:________________________ Kelly Collins, Deputy Clerk to the Honorable PHYLLIS J. HAMILTON 4

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