Moore v. Gonzalez et al

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Jeremy Fogel on 4/22/11. (dlm, COURT STAFF) (Filed on 5/2/2011)

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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MERRICK JOSE MOORE,
Plaintiff,

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vs.

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L. GONZALEZ, et al.,
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Defendants.
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No. C 11-00371 JF (PR)

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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Plaintiff, a prisoner currently incarcerated at the Salinas Valley State Prison

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(“SVSP”) in Soledad, filed the instant civil rights action in pro se pursuant to 42 U.S.C.

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§ 1983 against prison officials. Plaintiff’s motion for leave to proceed in forma pauperis,

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(Docket No. 2), will be granted in a separate order.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify
Order of Dismissal with Leave to Amend
P:\PRO-SE\SJ.JF\CR.11\00371Moore_dwlta.wpd

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is

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immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be

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liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1988).
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 violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims
According to the complaint and attachments thereto, Plaintiff was being

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transported from SVSP to “SAC” State Prison on March 17, 2010. During a brief stop at

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San Quentin State Prison, Plaintiff was waiting in the bus in the Receiving and Release

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area when Defendant L. Gonzalez snatched Plaintiff up from his seat and dragged him to

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the back of the bus where he proceeded to choke him. (Compl. at 3.) Liberally

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construed, Plaintiff’s claim against Gonzalez is cognizable as violating the Eighth

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Amendment’s prohibition against the use of excessive force.

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Plaintiff alleges that when he complained to Defendant Sergeant W. Bennett about

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Gonzalez’s misconduct and his desire to file a complaint, Bennett warned Plaintiff not to

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pursue the matter. (Id. at 3(a).) Plaintiff alleges that he was treated differently thereafter

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during the remainder of the transport. These allegations are insufficient to state a claim as

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Plaintiff fails to allege how Bennett’s actions violated a right secured by the Constitution

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or other federal law. Accordingly, the claims against Bennett are DISMISSED with leave

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to amend.

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CONCLUSION

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For the reasons stated above, the Court orders as follows:

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1.

The claims against Defendant W. Bennett are DISMISSED with leave to

Order of Dismissal with Leave to Amend
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amend within thirty (30) days from the date this order is filed, to correct the deficiencies

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discussed above. The amended complaint must include the caption and civil case number

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used in this order (11-00371 JF (PR)) and the words FIRST AMENDED COMPLAINT

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on the first page. Because an amended complaint completely replaces the previous

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complaints, Plaintiff must include in his amended complaint all the claims he wishes to

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present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior

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complaint by reference.

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Failure to file an amended complaint in the time provided will result in the
dismissal without prejudice of this action without further notice to Plaintiff.
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It is Plaintiff’s responsibility to prosecute this case. Plaintiff must

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keep the Court informed of any change of address by filing a separate paper with the clerk

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headed “Notice of Change of Address.” He must comply with the Court’s orders in a

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timely fashion or ask for an extension of time to do so. Failure to comply may result in

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the dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED:

4/22/11

JEREMY FOGEL
United States District Judge

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Order of Service
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

MERRICK JOSE MOORE,

Case Number: CV11-00371 JF

Plaintiff,

CERTIFICATE OF SERVICE

v.
L. GONZALEZ, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
5/2/11
That on
, 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.

Merrick Jose Moore H82249
Salinas Valley State Prison III
P.O. Box 1050
Soledad, CA 93960
Dated:

5/2/11
Richard W. Wieking, Clerk