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Wesley Kane Campbell v. Lee Baca

May 17, 2011

WESLEY KANE CAMPBELL, PLAINTIFF,
v.
LEE BACA, LOS ANGELES SHERIFF,
DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER

DISMISSING COMPLAINT WITH LEAVE TO AMEND

Proceedings

Plaintiff, a state prisoner proceeding pro se, paid the filing fee and filed a complaint under 42 U.S.C. § 1983 against Los Angeles County Sheriff Lee Baca ("Baca") in his official capacity only. For the reasons described below, the complaint is dismissed with leave to amend for failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1)-(2).

Plaintiff has three options: (1) Plaintiff may continue this action in this court by filing a document labeled "First Amended Complaint" within twenty-one (21) days of the date of this order. To withstand dismissal, the amended complaint must attempt to correct the deficiencies described below.

(2) Plaintiff may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiff wishes to challenge dismissal of the complaint by seeking appellate review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff's intent not to file an amended complaint, this action will be dismissed with prejudice, and plaintiff will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

(3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this court's order. See Edwards, 356 F.3d at 1063-1066.

Plaintiff is cautioned that failure to file an amended complaint within the time permitted by this order may result in the dismissal of this action with prejudice.

Plaintiff's Allegations

The complaint alleges the following facts. Plaintiff was fed feces in his meals while housed in "the jail at MSB." [Complaint 5]. He was declassified as a confidential informant with the "West Hollywood Sheriff"after family members came forward with "with two lewd acts on a child . . . ." [Complaint 6]. Unidentified sheriff's deputies kept plaintiff in a cell "for 4 days and 3 nights with no food, no water and no clothing"; told plaintiff "to 'piss' water to take [his] meds'"; and "tried to throw [plaintiff] into a room full of SouthSiders while [he] was a fish green light row." [Complaint 5-6]. Plaintiff "had to slice [his] wrists all year to avoid getting killed as an informer and false crimes as a child molester." [Complaint 5].

Plaintiff seeks $15 million in damages. He also wants Baca to "clear my jacket up . . . ." [Complaint 6].

Discussion

On its own motion or the motion of a party, the court "shall" dismiss a complaint that seeks relief against a governmental entity or officer or employee of a governmental entity, or a complaint brought by a prisoner with respect to prison conditions, if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1)-(2).

A complaint may be dismissed for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). To survive dismissal, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, - U.S.-, 129 S.Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.544, 570 (2007), and citing Twombly, 550 U.S. at 556). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). The court must accept as true all factual ...


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