United States District Court, N.D. California, San Francisco Division
May 19, 2014
WILLIE WEAVER, Plaintiff,
WARDEN, et al., Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
RICHARD SEEBORG, District Judge.
This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state prisoner against his jailors at Pelican Bay State Prison. After reviewing the complaint pursuant to 28 U.S.C. § 1915A(a), the Court DISMISSES the complaint with leave to file an amended complaint on or before July 1, 2014.
A. Standard of Review
A "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 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 alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
The following constitutes plaintiff's entire allegation: "In group today, 1-10-14, I had to lisson [ sic ] to racial comment's [ sic ] about KKK and was called the - n - word, [.] I have law suit's [ sic ] pending here, thats called conflict of interest, the defendants show deliberate indifference under the color of state law." (Compl. at 3.) Such allegation does not contain sufficient factual matter to state a claim for relief. First, he has not established liability because he fails to name who (whether inmate or prison staff) made these comments. Second, even if he had named the allegedly offending person, neither disrespectful, insulting, and vulgar language, nor verbal harassment, are actionable under section 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997); see also Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Third, plaintiff fails to provide any specific details showing what conflict of interest exists, how it implicates his federal rights, or how anyone's conduct has resulted in deliberate indifference. To state a claim for deliberate indifference, a prisoner-plaintiff must allege specific facts indicating that a prison official knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an amended complaint on or before July 1, 2014. The first amended complaint must include the caption and civil case number used in this order (14-0342 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the previous complaints, plaintiff must include in his first amended complaint all the claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior complaint by reference. Failure to file an amended complaint in accordance with this order will result in dismissal of this action without further notice to plaintiff.
It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed "Notice of Change of Address." He must comply with the Court's orders in a timely fashion or ask for an extension of time to do so. Failure to comply may result in the dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.