United States District Court, E.D. California
JOHN F. WESTON, Plaintiff,
J. CLARK KELSO, Defendant.
ORDER & FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and seeking relief
pursuant to 42 U.S.C. § 1983. This action was originally
filed in the Sacramento County Superior Court. Defendant
Kelso removed it to federal court on February 21, 2017.
See 28 U.S.C. § 1442(a).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“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.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
sole named defendant in this action is J. Clark Kelso, the
court-appointed Receiver for the prison health care system in
Plata v. Schwarzenegger, C01-1391 TEH (N.D. Cal.).
Like numerous other prisoner actions in this district,
plaintiff's complaint concerns a May 16, 2016
“Notice of Data Breach” which informed inmates
that, on February 25, 2016, a password-protected state
laptop, possibly containing inmates' personal
information, was stolen from a prison staffer's vehicle.
(ECF No. 1 at 21.) Plaintiff claims this incident has put him
at risk of having his confidential information misused, and
that prison officials responsible for the incident have
violated his legal rights.
is required to establish standing for each claim he asserts.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006). If a plaintiff has no standing, the court has no
subject matter jurisdiction. Nat'l Wildlife Fed'n
v. Adams, 629 F.2d 587, 593 n. 11 (9th Cir. 1980)
(“[B]efore reaching a decision on the merits, we [are
required to] address the standing issue to determine if we
have jurisdiction.”). There are three requirements that
must be met for a plaintiff to have standing: (1) the
plaintiff must have suffered an “injury in
fact”-an invasion of a legally protected interest which
is both concrete and particularized and actual or imminent;
(2) there must be a causal connection between the injury and
the conduct complained of; and (3) it must be likely that the
injury will be redressed by a favorable decision. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);
Wash. Legal Found. v. Legal Found. of Wash., 271
F.3d 835, 847 (9th Cir. 2001) (en banc). Here, plaintiff has
not shown he has standing to sue because the complaint
demonstrates only that the theft of the state's laptop
has the potential to injure plaintiff. Plaintiff alleges no
actual misuse of his personal information stemming from the
as plaintiff alleges that prison officials were negligent,
mere negligence does not amount to a cause of action under
these reasons, the complaint fails to state a cognizable
No Leave to Amend
court finds that a complaint should be dismissed for failure
to state a claim, the court has discretion to dismiss with or
without leave to amend. Lopez v. Smith, 203 F.3d
1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend
should be granted if it appears possible that the defects in
the complaint could be corrected, especially if a plaintiff
is pro se. Id. at 1130-31; see also Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995)
(“A pro se litigant must be given leave to amend his or
her complaint, and some notice of its deficiencies, unless it
is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.”) (citing Noll v.
Carlson, 809 F.2d 1446, ...