Free Order - District Court of California - California

Case 3:08-cv-03942-WHA

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1 2 3 4 5 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 DAVE P. BRUTON, Plaintiff, v. CONTRA COSTA COUNTY SHERIFF, Defendant. / 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. STANDARD OF REVIEW Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the Plaintiff, an inmate of the Contra Costa County Jail, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff also requests leave to proceed in forma pauperis. DISCUSSION No. C 08-3942 WHA (PR) DISMISSAL WITH LEAVE TO AMEND IN THE UNITED STATES DISTRICT COURT

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statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). B. LEGAL CLAIMS Plaintiff asserts that he "know[s] for a fact" that his water had been "tampered with" and his mail destroyed. He also asserts that the "medical staff" has been "unprofessional" in its "lack of response and cruel behavior." These are the only allegations; no more facts are provided. These allegations are, of course, not sufficient to state a "plausible" claim that plaintiff's constitutional rights were violated. The complaint will be dismissed with leave to amend. In amending, plaintiff should provide enough facts to explain, for instance, in what way he contends his water was tampered with and why the tampering matters. This court considers only claims of violations of federal law, usually the constitution, so plaintiff must allege facts sufficient to show that the tampering, and the mail destruction, and the problems with medical care, rise to the level of constitutional violations. He should also note that the only defendant named is the Contra Costa County Sheriff. He is attempting to hold an individual liable, so must allege facts showing what that individual did that violated his constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 2

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1988) (sweeping conclusory allegations will not suffice; the plaintiff must instead "set forth specific facts as to each individual defendant's" actions which violated his or her rights). There is no respondeat superior liability in Section 1983 cases, so the sheriff cannot be held liable just because he is in charge of the jail. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). CONCLUSION 1. The complaint is DISMISSED with leave to amend, as indicated above, within thirty days from the date of this order. The amended complaint must include the caption and civil case number used in this order and the words AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to amend within the designated time will result in the dismissal of these claims. 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address by filing with the clerk a separate paper headed "Notice of Change of Address." Papers intended to be filed in this case should be addressed to the clerk and not to the undersigned. Petitioner also must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: August 22 , 2008.

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WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

DAVE P BRUTON, Plaintiff, v. CONTRA COSTA COUNTY, Defendant. /

Case Number: CV08-03942 WHA CERTIFICATE OF SERVICE

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 August 25, 2008, I SERVED a true and correct copy(ies) of the 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) into an inter-office delivery receptacle located in the Clerk's office.

Dave P. Bruton #2007-008­11 Contra Costa County Jail 1000 Ward St. Martinez, CA 94553 Dated: August 25, 2008 Richard W. Wieking, Clerk By: D. Toland, Deputy Clerk