Simpson v. State of California

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 11/14/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 11/15/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LAURINCE O’SHEIGH SIMPSON,

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Plaintiff,

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v.
STATE OF CALIFORNIA, et al.,

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Defendants.

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No. C 11-4067 LHK (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983. Plaintiff’s motion for leave to proceed in forma pauperis is GRANTED in a
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separate order. For the reasons stated below, the Court dismisses the complaint with leave to
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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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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
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Order of Dismissal with Leave to Amend
P:\pro-se\sj.lhk\cr.11\Simpson067dwla

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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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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.

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Legal Claims
Plaintiff’s complaint is incomplete. He begins to state facts regarding a delayed x-ray

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examination, however, at the bottom of his “Statement of Claim” is a notation that it “[c]ontinues

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on Page 3A.” However, the Court does not have “Page 3A,” or any continuation of Plaintiff’s

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claim. Nor does the Court have “Page 4A,” which is supposed to contain the remainder of

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Plaintiff’s request for relief. The Court cannot adequately screen an incomplete complaint.

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Thus, the current complaint is DISMISSED with leave to amend.

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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 11-4067 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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4.

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
Order of Dismissal with Leave to Amend
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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:

11/14/11
LUCY H. KOH
United States District Judge

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Order of Dismissal with Leave to Amend
P:\pro-se\sj.lhk\cr.11\Simpson067dwla

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