Ruiz v. Oliveira et al

Filing 3

ORDER DISMISSING Complaint without Prejudice. Plaintiff is granted leave to file a First Amended Complaint within forty-five (45) days of the date of this Order. Signed by Judge Roger T. Benitez on 10/2/2017.(Sent form to Plaintiff) (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ORDER DISMISSING COMPLAINT

Plaintiff,

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Case No.: 3:17-cv-01914-BEN-NLS

ROGELIO MAY RUIZ,
CDCRNo. F-59761

v.
R. OLIVEIRA; B. SELF; M. VOONG;
CDCR OFFICERS,

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Defendant.

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Rogelio May Ruiz (“Plaintiff’), currently incarcerated at Corcoran State Prison,

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and proceeding pro se, has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C.

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§ 1983. (Doc. No. 1.) Plaintiffs Complaint contains factual allegations which are

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written entirely in Spanish. Plaintiff did not prepay the civil filing fee required by 28

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U.S.C. § 1914(a) when he filed his Complaint; instead, he has filed a Motion to Proceed

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In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.)

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I.

Initial Screening per 28 U.S.C. § 1915A(b)(l)

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The Court may conduct a sua sponte review of Plaintiff s Complaint because he is

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“incarcerated or detained in any facility [and] is accused of, sentenced for, or adjudicated

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delinquent for, violations of criminal law or the terms or conditions of parole, probation,

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pretrial release, or diversionary program.” 28 U.S.C. § 1915A(a), (c). Section 1915A,

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enacted as part of the Prison Litigation Reform Act (“PLRA”), requires sua sponte

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dismissal of prisoner complaints, or any portions thereof, which are frivolous, malicious,

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or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick

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v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

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“Section 1983 creates a private right of action against individuals who, acting
under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

9 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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A.

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In this matter, the Court finds that Plaintiffs Complaint fails to comply with Rule

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Rule 8

8 of the Federal Rules of Civil Procedure, which provides that in order to state a claim for

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court’s jurisdiction” and “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). “The pleading standard Rule 8

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announces does not require ‘detailed factual allegations,’ but it demands more than an

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unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

24 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
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Here, Plaintiffs Complaint is written entirely in Spanish. Local Rule 5. l.a.

26 provides, in part, that “[e]ach document filed, including exhibits where practicable, must
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be in English.” CivLR 5. l.a. Thus, the Court finds that Plaintiffs Complaint falls short

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of complying with Rule 8 and the Court’s local rules, and for those reasons alone,

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requires dismissal. Moreover, due to the fact that the Complaint is written entirely in

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Spanish, the Court is unable to conduct the required sua sponte screening pursuant to 28

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U.S.C. § 1915 A. Therefore, the Court will allow Plaintiff to file an amended pleading,

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but reminds Plaintiff that it must be written in English. CivLR 5.1 .a.

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III.

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Conclusion and Orders
For the reasons stated above, Plaintiffs Complaint is DISMISSSED without

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prejudice for failing to comply with Federal Rule of Civil Procedure 8(a)(1) and Civil

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Local Rule 5.1 .a. Plaintiff is granted leave to file a First Amended Complaint (“FAC”)

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within forty-five (45) days of the date of this Order that cures the deficiencies identified

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in this Order. Plaintiffs Amended Complaint must be complete in itself without

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reference to his original pleading. Defendants not named and any claims not re-alleged

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in the Amended Complaint will be considered waived. See CivLR 15.1; Hal Roach

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Studios, Inc. v. RichardFeiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n

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amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928

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(9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re­

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alleged in an amended pleading may be “considered waived if not repled.”).

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Additionally, Plaintiffs Motion to Proceed IFP is DENIED as moot and without
prejudice to re-file with his amended pleading.

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The Clerk of Court is directed to mail Plaintiff, together with this Order, a blank

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copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983” for

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use in amending his pleading.

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IT IS SO ORDERED.
DATED: Qctobefr^-2017

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HONTROGER T. BENITEZ
United States District Judge

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