Washington v. Magado

• Court: District Court, N.D. California
• Decided: February 22, 2022
• Docket: 5:21-cv-08126
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 CHRISTOPHER N. WASHINGTON, 11 Case No. 21-08126 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND 13 v.

14 NURSE MAGADO, et al., 15

Defendants. 16

17 18 Plaintiff, a state prisoner currently confined at Mule Creek State Prison, filed the 19 instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against various Defendants 20 at Salinas Valley State Prison (“SVSP”), an individual at the Health Care Appeals 21 Headquarters in Sacramento, Secretary Ralph Diaz of the CDCR, and Governor Gavin 22 Newsom. Dkt. No. 1 at 2. Plaintiff’s motion for leave to proceed in forma pauperis will 23 be addressed in a separate order. 24 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff’s Claims 11 Plaintiff names the following as Defendants in this action: SVSP Nurse Magado, 12 SVSP Warden, C. R. Padilla (Health Care Appeal, Institution Level), S. Gates (Health 13 Care Appeal Headquarters), Secretary Ralph Diaz, and Governor Gavin Newsom. Dkt. 14 No. 1 at 2. Plaintiff’s claim is handwritten on a single page of the complaint and is 15 difficult to read. Id. at 3. From what can be deciphered, Plaintiff is unsatisfied with how 16 one of his inmate grievances (602) was handled. Id. He claims that the “Appeal Branch 17 refused to address the real issues,” and mentions the vaccine and Covid-19. Id. Other than 18 one reference to Defendant Padilla, Plaintiff does not mention any other named Defendant 19 in his statement of claim. Id. The form of relief sought is also difficult to read. Id. 20 Based on the foregoing, the Court cannot determine whether the complaint states a 21 cognizable claim under § 1983. Plaintiff shall be granted leave to amend to file an 22 amended complaint that is legibly written and clearly sets forth sufficient facts to state a § 23 1983 claim against each named Defendant. 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 25 of the claim showing that the pleader is entitled to relief.” “Specific facts are not 26 necessary; the statement need only ‘“give the defendant fair notice of what the . . . claim is 1 (citations omitted). “Factual allegations must be enough to raise a right to relief above the 2 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations 3 omitted). To state a claim that is plausible on its face, a plaintiff must allege facts that 4 “allow[] the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Liability may be 6 imposed on an individual defendant under § 1983 only if Plaintiff can show that the 7 defendant proximately caused the deprivation of a federally protected right. See Leer v. 8 Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a constitutional 9 right within the meaning of section 1983 if he does an affirmative act, participates in 10 another’s affirmative act or omits to perform an act which he is legally required to do, that 11 causes the deprivation of which the plaintiff complaints. See Leer, 844 F.2d at 633. 12 13 CONCLUSION 14 For the foregoing reasons, the Court orders as follows: 15 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 16 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct 17 the deficiencies described above. The amended complaint must include the caption and 18 civil case number used in this order, Case No. 21-08126 BLF (PR), and the words 19 “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 20 must answer all the questions on the form in order for the action to proceed. The amended 21 complaint supersedes the original, the latter being treated thereafter as non-existent. 22 Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently, 23 claims not included in an amended complaint are no longer claims and defendants not 24 named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 25 F.2d 1258, 1262 (9th Cir.1992). 26 2. Failure to respond in accordance with this order in the time provided 1 without further notice to Plaintiff. 2 3. The Clerk shall include two copies of the court’s complaint with a copy of 3 || this order to Plaintiff. 4 IT IS SO ORDERED. 5 || Dated: _February 22, 2022 Aad Lun ame) ‘ BETH LABSON FREEMAN United States District Judge 7 8 9 10 1] g 15

© 4 18 19 20 21 22 23 24 Order of Dism. With Leave to Amend 25 PRO-SE\BLF\CR.21\08126Washington dwlta 26 27