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)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 RANDALL PIERCE, Plaintiff, 12 13 vs. 14 SAN MATEO COUNTY, 15 Defendant. 16 No. C 12-05362 EJD (PR) ) ) ) ) ) ) ) ) ) ) ) ORDER OF DISMISSAL 17 Plaintiff filed the instant civil rights action under 42 U.S.C. § 1983. Plaintiff’s 18 19 original complaint was dismissed with leave to amend and he has filed an amended 20 complaint. 21 DISCUSSION 22 23 24 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 27 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 28 claim upon which relief may be granted or seek monetary relief from a defendant who is Order of Dismissal 05362Pierce_dsm.wpd 1 1 immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be 2 liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 3 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims Plaintiff first filed a request for forms (Docket No. 1) and then a request for case 9 10 related relief (Docket No. 4) that the Court construed as a complaint. The complaint 11 simply stated that Plaintiff sought relief then included thirteen pages of inmate appeals 12 raising a wide range of different unrelated grievances. The appeals discussed his need for 13 the law library, a request for a bible, envelopes and other miscellaneous requests. The 14 complaint was dismissed with leave to amend and Plaintiff was told he must allege that a 15 person acting under the color of state law committed a violation of a right secured by the 16 Constitution or laws of the United States. 17 Plaintiff’s amended complaint has failed to cure the deficiencies of the prior 18 complaint. Plaintiff alleges violations of several Constitutional rights, but only states that 19 his mail has been opened and he was verbally assaulted. He fails to identify any specific 20 Defendants or provide any other information. Regardless, Plaintiff has failed to state a 21 claim regarding his mail. See Alvarez v. Horel, 415 Fed. Appx. 836 (9th Cir. 2011) 22 (district court properly dismissed opened mail claim as plaintiff failed to allege he 23 suffered any injury). Allegations of verbal harassment and abuse fail to state a claim 24 cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 25 1997) overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th 26 Cir. 2008). 27 /// 28 /// Order of Dismissal 05362Pierce_dsm.wpd 2 1 The amended complaint will be dismissed and as Plaintiff has already been 2 provided an opportunity to amend, and as it is clear that further amendment would be 3 futile, this case is dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 4 1129 (9th Cir. 2000). 5 CONCLUSION 6 7 8 For the foregoing reasons, the complaint is DISMISSED without leave to amend for failure to state a claim. 9 10 DATED: 2/22/2013 EDWARD J. DAVILA United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal 05362Pierce_dsm.wpd 3 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal 05362Pierce_dsm.wpd 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?