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Dangerfield v. Neu

United States District Court, N.D. California

April 8, 2015

ANDRE DANGERFIELD, Plaintiff,
v.
DEPUTY NEU, et al., Defendants.

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; DIRECTING PLAINTIFF TO FILE NOTICE OF CURRENT ADDRESS AND INTENT TO PROSECUTE

LUCY H. KOH, District Judge.

Plaintiff, a California state pretrial detainee proceeding prose, filed this civil rights action under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis in a separate order. For the reasons stated below, the court orders service upon the defendants and directs plaintiff to file a notice of current address and intent to prosecute.

DISCUSSION

A. Standard of Review

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that 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. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988).

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

Plaintiff alleges that, while housed at the San Francisco County jail, Deputy Neu accused plaintiff of stealing a bike. Then, as Deputy Neu was escorting plaintiff from his cell to the interview room, Lieutenant Minor held onto plaintiffs legs as Deputy Neu slammed plaintiffs head into a table approximately four times. Liberally construed, plaintiff has stated a cognizable claim of excessive force against Deputy Neu and Lieutenant Minor.

Plaintiff also names Senior Deputy Brown as a defendant. A person deprives another of a constitutional right within the meaning of section 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. See id. at 633. Absent vicarious liability, each Government official, his title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A supervisor therefore generally "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Where there is no evidence that the supervisor was personally involved or connected to the alleged violation, the supervisor may not be liable. See Eagerly v. City and County of San Francisco, 599 F.3d 946, 961-62 (9th Cir. 2010). Here, plaintiff provides no facts to support a claim against Senior Deputy Brown. Accordingly, Senior Deputy Brown is DISMISSED with leave to amend.

C. Notice of Intent to Prosecute

On March 4, 2015, after plaintiff declined to consent to magistrate judge jurisdiction, this case was reassigned to the undersigned judge. (Docket No. 5.) On March 12, 2015, the order or reassignment was returned to the court as undeliverable.

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may sua sponte dismiss an action for failure to prosecute or to comply with a court order. See Link v. Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). However, such a dismissal should only be ordered when the failure to comply is unreasonable. See id. The court should afford the litigant prior notice of the court's intention to dismiss. See Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987). Furthermore, pursuant to Northern District Local Rule 3-11, a party proceeding prose whose address changes while an action is pending must promptly file and serve upon all opposing parties a notice of change of address specifying the new address. See Civil L.R. 3-11(a).

Accordingly, it is in the interests of justice and judicial efficiency for the court to establish whether plaintiff intends to continue to prosecute this action. Plaintiff shall. file a notice of his current address, and his continued intent to prosecute no later than twenty (20) days from the filing date of this order.

Failure to do so will result in the dismissal of this action without prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil ...


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