Guy v. Baptista et al

Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND. All Defendants are dismissed, except Baptista and Richcreek, though Plaintiff will be provided leave to amend, if he chooses. Within twenty-eight (28) days of the date this order is filed, Plaintiff shall file an amended complaint using the court's form complaint. The amended complaint must include the caption and civil case number used in this order and the words "AMENDED COMPLAINT" on the first page and write in the case number for this ac tion, Case No. C 12-06301 EJD (PR). Plaintiff must answer all the questions on the form in order for the action to proceed. Failure to respond in accordance with this order by filing an amended complaint will result in the dismissal of all Defendants except Baptista and Richcreek, and this case will continue only against them. The Clerk shall include two copies of the court's complaint with a copy of this order to Plaintiff. Amended Complaint due by 4/5/2013. Signed by Judge Edward J. Davila on 3/7/2013. (Attachments: # 1 Form Habeas Complaint)(ecg, COURT STAFF) (Filed on 3/8/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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GUY WILLIAM,
Plaintiff,

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vs.

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W. BAPTISTA, et al.,
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Defendants.
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No. C 12-06301 EJD (PR)

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

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Plaintiff, a state prisoner at Corcoran State Prison, filed the instant civil rights

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action in pro se pursuant to 42 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in

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forma pauperis will be granted in a separate written order.

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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
Dismissal with leave to amend
06301William_dwlta.wpd

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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
While incarcerated at Pelican Bay State Prison, Plaintiff, a 70 year-old inmate,

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alleges that Defendants Baptista and Richcreek beat him after he exited the shower for no

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reason and he suffered injuries about his face, head and body. Liberally construed,

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Plaintiff’s claim of excessive force is cognizable under § 1983 as a violation of the Eighth

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Amendment.
Plaintiff also alleges that Defendants Johnson and Pepiot refused to discipline or

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punish Baptista and Richcreek, though this fails to state a claim. Plaintiff states that

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Defendant Patterson verbally threatened him and Defendants Becker and Puget

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improperly denied his inmate appeals. The complaint will be dismissed with one

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opportunity to amend for Plaintiff to provide sufficient allegations against these

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Defendants. Failure to file an amended complaint will result in this action continuing

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only against Baptista and Richcreek. Any amended complaint must also contain the

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allegations against Baptista and Richcreek as it will replace the original complaint.
Plaintiff is informed that allegations of verbal harassment and abuse fail to state a

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

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

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884-85 (9th Cir. 2008). With respect to the denial of his inmate appeals, there is no

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constitutional right to a prison administrative appeal or grievance system. See Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988).
Dismissal with leave to amend
06301William_dwlta.wpd

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. All Defendants are dismissed, except Baptista and Richcreek, though Plaintiff

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will be provided leave to amend, if he chooses. Within twenty-eight (28) days of the

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date this order is filed, Plaintiff shall file an amended complaint using the court’s form

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complaint. The amended complaint must include the caption and civil case number used

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in this order and the words “AMENDED COMPLAINT” on the first page and write in

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the case number for this action, Case No. C 12-06301 EJD (PR). Plaintiff must answer

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all the questions on the form in order for the action to proceed.

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Failure to respond in accordance with this order by filing an amended

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complaint will result in the dismissal of all Defendants except Baptista and

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Richcreek, and this case will continue only against them.

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The Clerk shall include two copies of the court’s complaint with a copy of this
order to Plaintiff.

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DATED:

3/7/2013

EDWARD J. DAVILA
United States District Judge

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Dismissal with leave to amend
06301William_dwlta.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

GUY WILLIAM,

Case Number CV 12-06301 EJD (PR)

Plaintiff,
CERTIFICATE OF SERVICE
vs.
W. BAPTISTA, et al.,
Defendants.
/
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
3/8/2013
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.

Guy William
C53829
CSP-COR
P.O. Box 8800
Corcoran, CA 93212

3/8/2013
DATED: ________________________

Richard W. Wieking, Clerk

/s/ By: Elizabeth Garcia, Deputy Clerk