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Herrington v. Napa State Hospital

United States District Court, N.D. California

May 23, 2017

DAVID F. HERRINGTON, Plaintiff,
v.
NAPA STATE HOSPITAL, Defendant.

          ORDER OF DISMISSAL WITH LEAVE TO AMEND

          JACQUELINE SCOTT CORLEW United States Magistrate Judge

         INTRODUCTION

         Plaintiff, an inmate at Napa State Hospital, filed this pro se civil rights complaint under 42 U.S.C. § 1983 against “staff” members.[1] 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.

         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, 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. at 570.

         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).

         LEGAL CLAIMS

         Plaintiff 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 allegations.

         In the 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.

         CONCLUSION

         1. The 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.

         2. It 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).

         IT ...


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