Atterbury v. Stolp

Filing 7

ORDER by Judge Lucy H. Koh granting 5 Motion for Reconsideration ; granting 6 Motion for Leave to File ; DISMISSING WITH LEAVE TO AMEND (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 12/21/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DANNY F. ATTERBURY,

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Plaintiff,

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v.
MIKE STOLP,

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Defendant.

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No. C 11-3878 LHK (PR)
ORDER GRANTING MOTION
TO RECONSIDER; REOPENING CASE;
DISMISSING WITH LEAVE
TO AMEND
(Docket Nos. 5, 6)

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Plaintiff, a former civil detainee at Napa State Hospital (“NSH”), proceeding pro se, filed
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a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff’s motions for reconsideration are
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GRANTED. The Clerk is directed to re-open this action. Plaintiff’s motion for leave to proceed
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in forma pauperis is GRANTED. For the reasons stated below, the Court dismisses the
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complaint with leave to amend.
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DISCUSSION
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A.

Standard of Review

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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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Order Granting Motion to Reconsider; Re-Opening Case; Dismissing with Leave to Amend
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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.

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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 broadly alleges that Mike Stolp subjected him to unconstitutional conditions,

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and violated several of his constitutional rights. Plaintiff’s bald allegations do not proffer any

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plausible facts to state a claim for relief. See Twombly, 127 S. Ct. at 1974. However, Plaintiff

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will be given an opportunity to amend his complaint he can do so in good faith. In his amended

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complaint, Plaintiff must “set forth specific facts” regarding what Stolp did or did not do to

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violate each alleged constitutional right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
CONCLUSION

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1.

Plaintiff’s motion to reconsider is GRANTED. The Clerk shall RE-OPEN this

case. Plaintiff’s complaint is DISMISSED with leave to amend.
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Plaintiff shall file an AMENDED COMPLAINT within thirty days from the date

Order Granting Motion to Reconsider; Re-Opening Case; Dismissing with Leave to Amend
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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 11-3878 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.

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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:

12/20/11
LUCY H. KOH
United States District Judge

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Order Granting Motion to Reconsider; Re-Opening Case; Dismissing with Leave to Amend
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