Pierce v. San Mateo County

Filing 10

ORDER OF DISMISSAL. For the foregoing reasons, the complaint is DISMISSED without leave to amend for failure to state a claim. Signed by Judge Edward J. Davila on 2/22/2013. (ecg, COURT STAFF) (Filed on 2/25/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RANDALL PIERCE,
Plaintiff,

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vs.

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SAN MATEO COUNTY,
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Defendant.
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No. C 12-05362 EJD (PR)

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ORDER OF DISMISSAL

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Plaintiff filed the instant civil rights action under 42 U.S.C. § 1983. Plaintiff’s

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original complaint was dismissed with leave to amend and he has filed an amended

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complaint.

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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

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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
Order of Dismissal
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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
Plaintiff first filed a request for forms (Docket No. 1) and then a request for case

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related relief (Docket No. 4) that the Court construed as a complaint. The complaint

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simply stated that Plaintiff sought relief then included thirteen pages of inmate appeals

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raising a wide range of different unrelated grievances. The appeals discussed his need for

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the law library, a request for a bible, envelopes and other miscellaneous requests. The

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complaint was dismissed with leave to amend and Plaintiff was told he must allege that a

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person acting under the color of state law committed a violation of a right secured by the

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Constitution or laws of the United States.

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Plaintiff’s amended complaint has failed to cure the deficiencies of the prior

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complaint. Plaintiff alleges violations of several Constitutional rights, but only states that

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his mail has been opened and he was verbally assaulted. He fails to identify any specific

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Defendants or provide any other information. Regardless, Plaintiff has failed to state a

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claim regarding his mail. See Alvarez v. Horel, 415 Fed. Appx. 836 (9th Cir. 2011)

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(district court properly dismissed opened mail claim as plaintiff failed to allege he

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suffered any injury). Allegations of verbal harassment and abuse fail to state a claim

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cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir.

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1997) overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th

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Cir. 2008).

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Order of Dismissal
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The amended complaint will be dismissed and as Plaintiff has already been

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provided an opportunity to amend, and as it is clear that further amendment would be

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futile, this case is dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122,

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1129 (9th Cir. 2000).

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CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED without leave to amend
for failure to state a claim.

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DATED:

2/22/2013

EDWARD J. DAVILA
United States District Judge

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Order of Dismissal
05362Pierce_dsm.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

RANDALL PIERCE,

Case Number CV 12-5362 EJD (PR)

Plaintiff,
CERTIFICATE OF SERVICE
v.
SAN MATEO COUNTY,
Defendant.
/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on ______________________________, I SERVED a true and correct copy(ies) of the
2/25/2013
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) inter-office delivery receptacle located in the Clerk's office.

Randall Pierce
1082515
Maguire Correctional
300 Bradford Street
Redwood City, CA 94063

DATED: ________________________
2/25/2013

Richard W. Wieking, Clerk

/s/ By: Elizabeth Garcia, Deputy Clerk

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Order of Dismissal
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