Shaw v. Oakley Police Department et al

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND Amended Complaint due by 5/13/2013.. Signed by Judge Lucy H. Koh on 4/10/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/11/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL ANTHONY SHAW,

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Plaintiff,
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v.
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OAKLEY POLICE DEPARTMENT, et al., )
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Defendants.
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No. C 13-0624 LHK (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983.
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Plaintiff is granted leave to proceed in forma pauperis in a separate order. For the reasons stated
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below, the Court dismisses the 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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§ 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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Order of Dismissal with Leave to Amend
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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
In the complaint, Plaintiff states that on or around August 15, 2012, an Oakley police

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officer displayed excessive force by releasing his K-9 Shadow and using his taser gun.

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However, Plaintiff has failed to name any individual Defendant. Liability may be imposed on an

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individual defendant under 42 U.S.C. § 1983 if the plaintiff can show that the defendant

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proximately caused the deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988). A person deprives another of a constitutional right within the meaning

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of section 1983 if he does an affirmative act, participates in another’s affirmative act or omits to

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perform an act which he is legally required to do, that causes the deprivation of which the

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plaintiff complains. See id. at 633.

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Moreover, although Plaintiff names the Oakley Police Chief as a Defendant, he does not

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link the Police Chief to any deprivation of a federal right. See Henry A. v. Willden, 678 F.3d

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991, 1003-04 (9th Cir. 2012) (recognizing that a supervisor may be liable under section 1983

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upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional violation).

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Similarly, Plaintiff does not state a claim against the Oakley Police Department. See Plumeau v.

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School Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (recognizing that to state

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a claim for municipal liability, plaintiff must show: (1) that the plaintiff possessed a

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constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3)

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that this policy amounts to deliberate indifference to the plaintiff’s constitutional rights; and (4)

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that the policy is the moving force behind the constitutional violation). Thus, these Defendants

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are DISMISSED with leave to amend. Finally, Defendant K-9 Shadow is DISMISSED with

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prejudice because K-9 Shadow is not a “person.”

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In sum, Plaintiff’s complaint fails to state a claim. However, Plaintiff will be provided
Order of Dismissal with Leave to Amend
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thirty days in which to amend his complaint to correct the deficiencies therein if he can do so in

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good faith.

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Plaintiff is also advised that, if he is being held on pending criminal charges, any civil

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rights claims which might “impugn an anticipated future conviction cannot be brought until

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conviction occurs and is set aside.” Wallace v. Kato, 549 U.S. 384, 393 (2007). In other words,

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if plaintiff files a § 1983 claim related to rulings that likely will be made in a pending or

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anticipated criminal trial, it is within the power of the district court, and accords with common

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practice, to stay the civil action until the criminal case or the likelihood of a criminal case is

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ended. Id. at 393-94.

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CONCLUSION

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1.

Plaintiff’s complaint is DISMISSED with leave to amend.

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2.

If Plaintiff can cure the pleading deficiencies described above, he shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 13-0624 LHK

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(PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must

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indicate which specific, named Defendant(s) was involved in each cause of action, what each

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defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated.

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Plaintiff may not incorporate material from the prior complaint by reference. If Plaintiff files an

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amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that

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demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file an

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amended complaint within thirty days and in accordance with this order will result in a

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finding that further leave to amend would be futile, and this action will be dismissed.

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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 Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

Order of Dismissal with Leave to Amend
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informed of any change of address by filing a separate paper with the Clerk headed “Notice of

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Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do

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so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

4/10/13

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LUCY H. KOH
United States District Judge

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Order of Dismissal with Leave to Amend
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