United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
a state prisoner, has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. He has been granted leave to
proceed in forma pauperis.
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). In its review, the Court must identify any
cognizable claims, and dismiss any claims which 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. Id. at 1915A(b)(1), (2).
Pro se pleadings must be liberally construed. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
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.” Although 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, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer “enough facts to state a claim
to relief that is plausible on its face.” Id.
at 570. The United States Supreme Court has explained the
“plausible on its face” standard of
Twombly: “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
seeks money damages and injunctive relief due to the failure
of the state Inspector General to investigate plaintiff's
claims. To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege that: (1) a right secured by the
Constitution or laws of the United States was violated, and
(2) the alleged deprivation was committed by a person acting
under the color of state law. West v. Atkins, 487
U.S. 42, 48 (1988).
district courts are without power to issue mandamus to direct
state courts, state judicial officers, or other state
officials in the performance of their duties. A petition for
a writ of mandamus to compel a state court or official to
take or refrain from some action is frivolous as a matter of
law. See Demos v. U.S. District Court, 925 F.2d
1160, 1161-62 (9th Cir. 1991) (imposing no filing in forma
pauperis order); Clark v. Washington, 366 F.2d 678,
681 (9th Cir. 1966) (attorney contested disbarment and sought
reinstatement); Dunlap v. Corbin, 532 F.Supp. 183,
187 (D. Ariz. 1981) (plaintiff sought order from federal
court directing state court to provide speedy trial),
aff'd without opinion, 673 F.2d 1337 (9th Cir. 1982);
Newton v. Poindexter, 578 F.Supp. 277, 279 (C.D.
Cal. 1984) (§ 1361 has no application to state officers
or employees); see also In re Campbell, 264 F.3d
730, 731-32 (7th Cir. 2001) (denying petition for writ of
mandamus that would order state trial court to give
petitioner access to certain trial transcripts which he
sought in preparation for filing state post-conviction
petition; federal court may not, as a general rule, issue
mandamus to a state judicial officer to control or interfere
with state court litigation).
previously alleged in another case that certain prison
doctors and nurses were deliberately indifferent to his
serious medical needs. Garcia v. Kalisher,
15-cv-0045 JD. The Court granted summary judgment in that
action and closed the case and the Ninth Circuit affirmed the
decision. Docket Nos. 31, 38 in Garcia v. Kalisher,
15-cv-0045 JD. Plaintiff submitted a request to the Inspector
General regarding his medical treatment in an effort to have
the prison and prison doctors investigated. The Inspector
General responded that they cannot provide legal advice or
assistance. Plaintiff seeks money damages and an
Court cannot compel the Inspector General to conduct an
investigation and plaintiff has failed to state a claim under
42 U.S.C. § 1983 to provide for money damages. He has
not alleged that a right secured by the Constitution or laws
of the United States was violated. While he has a right to
medical care, that claim has already been litigated, and
plaintiff has not identified that he has a right for the
Inspector General to investigate. The complaint is dismissed
with leave to amend for plaintiff to present a federal claim.
complaint is DISMISSED with leave to amend. The amended
complaint must be filed within twenty-eight (28) days of the
date this order is filed and must include the caption and
civil case number used in this order and the words AMENDED
COMPLAINT on the first page. Because an amended complaint
completely replaces the original complaint, plaintiff must
include in it all the claims he wishes to present. See
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
He may not incorporate material from the original complaint
by reference. Failure to amend within the designated time
will result in the dismissal of this case.
is the 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, ” and must comply
with the Court's orders in a timely fashion. Failure to
do so may result in the dismissal of this action for failure
to prosecute pursuant to Federal Rule of Civil Procedure