Gilbert v. Alameda County of California

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 4/24/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 4/25/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DENNIS V. GILBERT, JR.,

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Plaintiff,
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v.
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ALAMEDA COUNTY OF CALIFORNIA, )
et al.,
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Defendants.
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No. C 11-1102 LHK (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND

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Plaintiff, currently an inmate at the Santa Rita Jail, proceeding pro se, filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983 for alleged civil rights violations. Plaintiff is granted

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leave to proceed in forma pauperis in a separate order. For the reasons stated below, the Court

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dismisses the complaint with leave to amend.

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DISCUSSION
A.

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

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss

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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
Order of Dismissal with Leave to Amend
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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff’s obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer “enough facts to state a claim for relief that is plausible on its face.” Id.

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at 1974.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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Plaintiff claims that the toilet flushing system is “not of any good use.” (Complaint at 3.)

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He implies that he has gotten sick because it is unsanitary, and he is limited to flushing the toilet

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two times an hour. (Id.)

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The complaint has several deficiencies that require an amended complaint to be filed.

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First, the amended complaint must allege facts that show federal constitutional violations. The

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amended complaint should describe what happened, when it happened, and how it violated his

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constitutional rights. For example, if Plaintiff intends to allege that a deprivation of a basic

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necessity was sufficiently serious to satisfy the objective component of an Eighth Amendment

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claim, Plaintiff must allege (1) what the deprivation is, recognizing that it must be objectively

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and sufficiently serious to rise to the level of a constitutional violation, and (2) that the prison

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official possessed a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S. 825,
Order of Dismissal with Leave to Amend
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834 (1994).
Second, although the complaint names Defendants, Plaintiff must allege in his amended

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complaint who caused those constitutional violations. He needs to link each Defendant to the

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claims by alleging facts showing the basis for liability for each individual Defendant. He should

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not refer to them as a group (e.g., “the Defendants”); rather, he should identify each involved

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person by name, and link each of them to the claim(s) by explaining what each Defendant did or

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failed to do that caused a violation of his constitutional rights. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988) (liability may be imposed on individual defendant under § 1983 only if

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plaintiff can show that a defendant proximately caused deprivation of federally protected right).

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Third, Plaintiff is advised that, although he names as Defendants, “all state, federal, and

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county facilities in California,” in general, the Eleventh Amendment bars from the federal courts

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suits against state and federal governments by its own citizens. Loeffler v. Frank, 486 U.S. 549,

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554 (1988); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985); see, e.g., Brown v.

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Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (noting that the California Department of

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Corrections and California Board of Prison Terms are entitled to Eleventh Amendment

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immunity).

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CONCLUSION

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1.

Plaintiff’s complaint is DISMISSED with leave to amend.

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2.

Plaintiff shall file an AMENDED COMPLAINT within thirty days from the date

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this order is filed to cure the deficiencies described above. The amended complaint must include

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the caption and civil case number used in this order (C 11-1102 LHK (PR)) and the words

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AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from the

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prior complaint by reference. Failure to file an amended complaint within thirty days and in

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accordance with this order will result in dismissal of this action.

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3.

Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.
Order of Dismissal with Leave to Amend
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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
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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 “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: 4/24/11
LUCY H. KOH
United States District Judge

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Order of Dismissal with Leave to Amend
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