United States District Court, N.D. California
ORDER REOPENING ACTION; ORDER OF DISMISSAL
RICHARD SEEBORG UNITED STATES DISTRICT JUDGE
fails to state any claim for relief in his amended 42 U.S.C.
§ 1983 complaint. Accordingly, this federal civil rights
action is DISMISSED.
suit was dismissed because plaintiff failed to file an
amended complaint by the deadline. He since has filed an
amended complaint. Accordingly, the judgment and the order of
dismissal are VACATED. (Dkt. Nos. 5 and 6.) The Clerk
shall reopen this action and modify the docket to reflect
this fact. The Court now will review the amended
Standard of Review
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Id. (quoting
Twombly, 550 U.S. at 556). Furthermore, a court
“is not required to accept legal conclusions cast in
the form of factual allegations if those conclusions cannot
reasonably be drawn from the facts alleged.” Clegg
v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
1994). 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).
original complaint was dismissed (with leave to amend)
because it raised conclusory contentions. Plaintiff alleged
without elaboration that in 2018 J. Preston, a prison guard
at Pelican Bay State Prison, refused to place him on suicide
watch and made insulting comments. This was insufficient.
First, while prison guards certainly must “take
reasonable measures to guarantee the safety of the inmates,
” Hudson v. Palmer, 468 U.S. 517, 526-527
(1984), there is no constitutional right for an inmate to be
placed on suicide watch. Second, plaintiff failed to
articulate any reason Preston should have been concerned
about plaintiff's personal safety. Merely saying without
any factual enhancement that he should have been placed on
suicide watch is insufficient.
was directed to provide specific reasons Preston should have
been alerted to plaintiff's condition, and the dates,
times, and places on which plaintiff exhibited any alarming
symptoms. He was told that federal pleading standards
“demand more than an unadorned,
Iqbal, 556 U.S. at 678. He was also directed to pay
attention to the following. 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 acts, or omits to perform an act
which he is legally required to do that causes the
deprivation of which [the plaintiff complains].”
Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)
(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th
Cir. 1978)). The inquiry into causation must be
individualized and focus on the duties and responsibilities
of each individual defendant whose acts or omissions are
alleged to have caused a constitutional deprivation.
allegations regarding Preston's comments failed to state
a claim for relief and were dismissed with prejudice. Neither
disrespectful, insulting, and vulgar language, nor verbal
harassment, are actionable under section 1983. See
Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997).
First Amended Complaint
alleges without elaboration that in September 2018 he told
Preston he “was having suicidal thoughts.” (Am.
Compl., Dkt. No. 7 at 3.) There is no factual enhancement
beyond this statement. According to plaintiff, Preston had to
follow state protocols and alert mental health professionals
for an evaluation. (Id.) Her actions, he contends,