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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tr 1 1LBD W OCT *4 AMfh'4i| 2 SLEW*- U.SRT JftfTjiSiH DVMiJSilKif SaHiTOlRflA " 3 i' JO) 4 DsffiM 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 15 ORDER DISMISSING COMPLAINT Plaintiff, 13 14 Case No.: 3:17-cv-01914-BEN-NLS ROGELIO MAY RUIZ, CDCRNo. F-59761 v. R. OLIVEIRA; B. SELF; M. VOONG; CDCR OFFICERS, 16 Defendant. 17 Rogelio May Ruiz (“Plaintiff’), currently incarcerated at Corcoran State Prison, 18 19 and proceeding pro se, has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. 20 § 1983. (Doc. No. 1.) Plaintiffs Complaint contains factual allegations which are 21 written entirely in Spanish. Plaintiff did not prepay the civil filing fee required by 28 22 U.S.C. § 1914(a) when he filed his Complaint; instead, he has filed a Motion to Proceed 23 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.) 24 I. Initial Screening per 28 U.S.C. § 1915A(b)(l) 25 The Court may conduct a sua sponte review of Plaintiff s Complaint because he is 26 “incarcerated or detained in any facility [and] is accused of, sentenced for, or adjudicated 27 28 l 3:17-cv-01914-BEN-NLS 1 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 2 pretrial release, or diversionary program.” 28 U.S.C. § 1915A(a), (c). Section 1915A, 3 enacted as part of the Prison Litigation Reform Act (“PLRA”), requires sua sponte 4 dismissal of prisoner complaints, or any portions thereof, which are frivolous, malicious, 5 or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick 6 v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 7 8 “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 10 substantive rights, but merely provides a method for vindicating federal rights elsewhere 11 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 12 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 13 deprivation of a right secured by the Constitution and laws of the United States, and (2) 14 that the deprivation was committed by a person acting under color of state law.” Tsao v. 15 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 16 A. 17 In this matter, the Court finds that Plaintiffs Complaint fails to comply with Rule 18 Rule 8 8 of the Federal Rules of Civil Procedure, which provides that in order to state a claim for 19 relief in a pleading it must contain “a short and plain statement of the grounds for the 20 court’s jurisdiction” and “a short and plain statement of the claim showing that the 21 pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). “The pleading standard Rule 8 22 announces does not require ‘detailed factual allegations,’ but it demands more than an 23 unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 24 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). 25 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 27 28 2 3:17-cv-01914-BEN-NLS 1 be in English.” CivLR 5. l.a. Thus, the Court finds that Plaintiffs Complaint falls short 2 of complying with Rule 8 and the Court’s local rules, and for those reasons alone, 3 requires dismissal. Moreover, due to the fact that the Complaint is written entirely in 4 Spanish, the Court is unable to conduct the required sua sponte screening pursuant to 28 5 U.S.C. § 1915 A. Therefore, the Court will allow Plaintiff to file an amended pleading, 6 but reminds Plaintiff that it must be written in English. CivLR 5.1 .a. 7 III. 8 Conclusion and Orders For the reasons stated above, Plaintiffs Complaint is DISMISSSED without 9 prejudice for failing to comply with Federal Rule of Civil Procedure 8(a)(1) and Civil 10 Local Rule 5.1 .a. Plaintiff is granted leave to file a First Amended Complaint (“FAC”) 11 within forty-five (45) days of the date of this Order that cures the deficiencies identified 12 in this Order. Plaintiffs Amended Complaint must be complete in itself without 13 reference to his original pleading. Defendants not named and any claims not re-alleged 14 in the Amended Complaint will be considered waived. See CivLR 15.1; Hal Roach 15 Studios, Inc. v. RichardFeiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 16 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 17 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re­ 18 alleged in an amended pleading may be “considered waived if not repled.”). 19 20 Additionally, Plaintiffs Motion to Proceed IFP is DENIED as moot and without prejudice to re-file with his amended pleading. 21 The Clerk of Court is directed to mail Plaintiff, together with this Order, a blank 22 copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983” for 23 use in amending his pleading. 24 IT IS SO ORDERED. DATED: Qctobefr^-2017 25 26 HONTROGER T. BENITEZ United States District Judge 27 28 3 3:17-cv-01914-BEN-NLS

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