United States District Court, N.D. California
December 23, 2005.
KIM S. KING, Plaintiff,
RODERICK HICKMAN, ARNOLD SCHW ARZENEGGER, Defendants.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND DENYING
WITHOUT PREJUDICE MOTIONS TO PROCEED IN FORMA PAUPERIS
Plaintiff, a prisoner of the State of California currently
incarcerated at Salinas Valley State Prison (SVSP), has filed
this pro se civil rights complaint under 42 U.S.C. § 1983.
Plaintiff seeks leave to proceed in forma pauperis. Venue is
proper in this district because the events complained of arose or
occurred in Monterey County. 28 U.S.C. § 1391(b).
STATEMENT OF FACTS
According to the allegations in the complaint, there exists at
SVSP a gang of prison guards known as the "Green Wall," which is
responsible for abusing and harming inmates, including Plaintiff.
Citing an article from the Sacramento Bee newspaper, Plaintiff
alleges that because of the "code of silence" amongst prison
guards and officials throughout the Department of Corrections,
the gang's activities continue to be covered up, without
consequence. Plaintiff names as Defendants Roderick Hickman, the
Director of the Department of Corrections, and Governor
Schwarzenegger, whom he alleges are aware of the abuse and
cover-ups but have not taken any action to remedy the situation. He seeks injunctive relief, asking this Court to take over
control of SVSP or to order the Defendants to investigate his
allegations and to take action.
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). The court must identify cognizable claims or dismiss
the complaint, or any portion of the complaint, if the complaint
"is frivolous, malicious, or fails to state a claim upon which
relief may be granted," or "seeks monetary relief from a
defendant who is immune from such relief." Id. § 1915A(b). Pro
se pleadings must be liberally construed. Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the Constitution
or laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under the
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff alleges that Defendants have failed to act to protect
his constitutional rights. Ordinarily, the Eleventh Amendment
bars official-capacity suits against state officials such as
Defendants. See Kentucky v. Graham, 472 U.S. 159, 169-70
(1985). However, a suit against state officials seeking
prospective injunctive relief from unconstitutional state action
is not barred. See id. at 167 n. 14; Ex parte Young,
209 U.S. 123, 159-60 (1908). This principle generally is referred to
as the Ex parte Young exception and is limited to prospective
injunctive relief from continuing or impending state action which
violates the federal constitution or a federal statute. See
Armstrong v. Wilson, 124 F.3d 1019, 1026 (9th Cir. 1997).
Because Plaintiff seeks prospective injunctive relief from
Defendants to remedy alleged constitutional violations, his suit
is not barred by the Eleventh Amendment.
However, Plaintiff has not alleged facts sufficient to state a
claim upon which relief may be granted. To state a claim arising
under federal law, it must be clear from the face of the
plaintiff's well-pleaded complaint that there is a federal
question. Easton v. Crossland Mortgage Corp., 114 F.3d 979, 982
(9th Cir. 1997). The mere reference to a federal statute in a
pleading will not convert a claim into a federal cause of action.
Id. While a plaintiff is not required to plead his evidence "or
specific factual details not ascertainable in advance of
discovery," Gibson v. United States, 781 F.2d 1334, 1340 (9th
Cir. 1986), cert. denied, 479 U.S. 1054 (1987), a pleading will
not be sufficient to state a claim under § 1983 if the
allegations are mere conclusions, Kennedy v. H & M Landing,
Inc., 529 F.2d 987, 989 (9th Cir. 1976). And a complaint that
fails to state the specific acts of the defendant which violated
the plaintiff's rights fails to meet the requirements of Rule
8(a)(2) of the Federal Rules of Civil Procedure. Hutchinson v.
United States, 677 F.2d 1322, 1328 n. 5 (9th Cir. 1982).
Plaintiff asserts that "federal violations toward this plaintiff
are numerous" and that he has been "denied the right to be free
from cruel & unusual punishment, beaten, property thrown away,
wittnessed [sic] many other federal violations to numerous other
inmates as well." Complaint at 3. These assertions are
conclusory, and are insufficient to state a claim for relief
under § 1983. Nor do they meet the pleading requirements of Rule
Moreover, Plaintiff does not set forth specific facts to
substantiate his assertions that he, personally, has suffered
injury. Rather, he asks the Court to take action based on a
general atmosphere of alleged fear and abuse at SVSP. This Court
is one of limited jurisdiction, however, and can only decide
matters where an individual plaintiff has standing. The
constitutional standing requirement derives from
Article III, Section 2 of the United States Constitution, which restricts
adjudication in federal courts to "cases" and "controversies."
See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982).
Article III standing is present only when (1) a plaintiff suffers
a concrete, particularized injury which is actual or imminent;
(2) there is a causal connection between the injury and the
conduct complained of; and (3) the injury will likely be
redressed by a favorable decision. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992); Wedges/Ledges of
California, Inc. v. City of Phoenix, 24 F.3d 56, 61 (9th Cir.
1994); see, e.g., Easyriders Freedom F.I.G.H.T. v. Hannigan,
92 F.3d 1486, 1495 (9th Cir. 1996) (plaintiff who seeks only
prospective injunctive relief has no standing to challenge
statute on vagueness grounds because relief sought will not
redress any past injury). While Plaintiff complains of a general
harm he has suffered as a result of the acts of rogue prison
guards at SVSP, he does not point to any constitutionally
cognizable cause of action for injury he has suffered personally
which was caused by those guards directly and thus can be
redressed by the named Defendants. Thus, he has failed to
establish that he has standing to bring this action.
Plaintiff might be able to state a claim upon which relief may
be granted if he can in good faith allege facts, subject to
proof, which clearly and succinctly identify the injury he
suffered, or continues to suffer, personally as a result of the
alleged actions of "Green Wall" prison guards; identify
specifically and link to his allegations the responsible guards;
and provide some support for his assertion that they are members
of the "Green Wall" gang. Without this basic information, the
complaint cannot proceed. Accordingly, the complaint is DISMISSED
WITH LEAVE TO AMEND as set forth below.
For the foregoing reasons and for good cause shown,
1. Leave to proceed in forma pauperis is DENIED without
prejudice. (Docket nos. 3, 4.) If Plaintiff files an amended
complaint which complies with this order the Court will review the in forma pauperis application anew.
2. Plaintiff's complaint is DISMISSED WITH LEAVE TO AMEND, as
discussed above. Plaintiff shall file an amended complaint within
thirty days from the date of this order. The amendment must
include the caption and civil case number used in this order and
the words "COURT ORDERED AMENDED COMPLAINT" on the first page.
Plaintiff's failure to amend or to notify the Court of his intent
not to do so within thirty days will result in the dismissal of
the complaint without prejudice and without further leave to
3. Plaintiff is advised that an amended complaint supersedes
the original complaint. "[A] plaintiff waives all causes of
action alleged in the original complaint which are not alleged in
the amended complaint." London v. Coopers & Lybrand,
644 F.2d 811, 814 (9th Cir. 1981). Defendants not named in an amended
complaint are no longer defendants. See Ferdik v. Bonzelet,
963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992).
4. It is Plaintiff's responsibility to prosecute this case.
Plaintiff must keep the Court informed of any change of address
and must comply with the Court's orders in a timely fashion.
Failure to do so may result in the dismissal of this action under
Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
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