United States District Court, N.D. California
ORDER OF SERVICE; OF PARTIAL DISMISSAL WITH LEAVE TO AMEND
JACQUELINE SCOTT CORLEY, Magistrate Judge.
Plaintiff, a state prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 1983 against the Alameda County Sheriff's Department, the Alameda County District Attorney's Office, deputies in both offices, Judith A. Browne, the City of Hayward and the City of Oakland for failing to protect him from a dangerous inmate who attacked him. His application to proceed in forma pauperis is granted in a separate order. For the reasons explained below, the complaint is ordered served upon certain defendants, and claims against three of the defendants are dismissed with leave to amend.
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).
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 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) (citations omitted). Although 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. 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 he entered a contract with the Alameda County District Attorney's Office and three deputies in that office, defendants Elgin Lowe, Amielar Ford and Terry Wiley, in which they agreed not to allow Plaintiff to enter prison, where he would be exposed to two murder defendants, in exchange for his cooperation in prosecuting them. He alleges that although the District Attorney's Office and the three deputies were aware that Plaintiff's life would be threatened in prison, they nevertheless breached the contract by allowing him to enter prison where he was exposed to one of the murder defendants on a transportation bus and was physically attacked. Plaintiff further alleges that defendant Lowe ordered him transported on the same bus as one of the murder defendants as retaliation for his refusal to testify at that defendant's preliminary hearing, and then provided Plaintiff's name to the defendant and his attorney. In addition, he alleges that the Alameda County Sherriff's Department and Deputy Sheriff Turner conspired with the District Attorney's Office to put him on the transportation bus with the murder defendant despite knowing the danger he posed to Plaintiff. Plaintiff states that he remains in the prison system in constant fear of further being killed. When liberally construed, these allegations state cognizable claims against these defendants for violating his Eighth Amendment right to be free from cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (Eighth Amendment requires that officials take reasonable measures to guarantee the safety of prisoners, including protection from violence at the hands of other prisoners).
Plaintiff has also listed the City of Hayward and the City of Oakland as Defendants but he only alleges in conclusory fashion that these municipal entities conspired in the breach of contract, without alleging what actions they took or how they participated in the alleged decision to allow him to go to prison and be exposed to the dangerous inmates. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1085 (9th Cir. 2013) (liability may be imposed on an individual defendant under 42 U.S.C. § 1983 only if the plaintiff can show that the defendant's actions both actually and proximately caused the deprivation of a federally protected right). Consequently, the complaint will be dismissed as to these two Defendants. Plaintiff may file an amended complaint to correct the deficiencies in his claims against these Defendants provided that he follows the instructions below.
Plaintiff also names as a defendant Judith A. Browne. He alleges that she is a criminal law expert who advised the prosecutors in how to breach the contract with Plaintiff. Plaintiff does not allege where she worked or what position she held when she provided this advice, and as a result, it cannot be inferred from the complaint that she was acting under color of state law, as is required for her to be liable under 42 U.S.C. § 1983. See West, 487 U.S. at 48. Accordingly, the claim against her must be dismissed, but Plaintiff may correct this deficiency in the amended complaint ordered below. If he does so, he must also provide Browne's current location in the amended complaint so that the Marshal will be able to serve her.
1. The claims against Judith A. Browne, the City of Oakland and the City of Hayward are DISMISSED with leave to amend. If Plaintiff wishes to pursue his claims against them, he must file an amended complaint within twenty eight (28) days from the date this order is filed. The amended complaint must include the caption and civil case number used in this order (No. C 14-4674 JSC (PR)) and the words "COURT-ORDERED FIRST AMENDED COMPLAINT" on the first page. Because an amended complaint completely replaces the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material from the original by reference. That is, he must include the claims against the other Defendants in any amended complaint, and if he does not, those claims will be dismissed and will no longer be a part of this case. Failure to amend within the designated time and in accordance with this order will result in the dismissal of the claims against Judith A. Browne, the City of Oakland and the City of Hayward.
2. The Clerk shall issue a summons and Magistrate Judge jurisdiction consent form and the United States Marshal shall serve, without prepayment of fees, the summons, Magistrate Judge jurisdiction consent form, a copy of the complaint with attachments and a copy of this order on Defendants Alameda County Sheriff's Department, Alameda County Deputy Sherriff Turner, the Alameda County District Attorney's Office, Deputy ...