United States District Court, N.D. California
DAVID F. HERRINGTON, Plaintiff,
NAPA STATE HOSPITAL, Defendant.
ORDER OF DISMISSAL WITH LEAVE TO AMEND
JACQUELINE SCOTT CORLEW United States Magistrate Judge
an inmate at Napa State Hospital, filed this pro se civil
rights complaint under 42 U.S.C. § 1983 against
“staff” members. Plaintiff's application to
proceed in forma pauperis is granted in a separate
order. For the reasons explained below, the complaint is
dismissed with leave to amend.
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.
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, 551 U.S.
89, 93 (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, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer “enough facts to state a claim
for relief that is plausible on its face.” Id.
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).
alleges that he was “killed by 5 staff, ” and
that his heart was later “restarted” at a medical
center. (ECF No. 1 at 3.) Plaintiff lists the names of these
staff members, but he does not allege any other facts. In
order to state a cognizable claim for relief against NSH
staff members for assaulting him, Plaintiff must allege more
facts, including the circumstances surrounding the assault,
the conduct of each of the different staff members who
participated in the assault, his own conduct before, during
and after the assault, and approximately when and where the
assault took place. Plaintiff will be given the opportunity
to file an amended complaint in which he makes these
complaint and a subsequent letter, Plaintiff requests to
change the venue of his criminal proceedings from Humboldt
County Superior Court to this Court. Plaintiff must make his
request for a change of venue in Humboldt County Superior
Court, not in federal court.
complaint is dismissed with leave to amend. Plaintiff shall
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 16-2876 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;
he must include in his amended complaint all the claims he
wishes to pursue. Failure to amend within the designated
time and in accordance with this order will result in the
dismissal of this action.
is Plaintiffs 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 also must
comply with the Court's orders in a timely fashion,
although he may request an extension of time provided it is
accompanied by a showing of good cause and it is filed on or
before the deadline he wants to extend. Failure to do so may
result in the dismissal of this action for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b).