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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KIM S. KING, 

Plaintiff,

 v.

RODERICK HICKMAN, ARNOLD

SCHWARZENEGGER, 

Defendants.

 

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No. C 05-1856 JSW (PR)

ORDER DISMISSING

COMPLAINT WITH LEAVE TO

AMEND AND DENYING

WITHOUT PREJUDICE

MOTIONS TO PROCEED IN

FORMA PAUPERIS

(Docket nos. 3, 4)

INTRODUCTION

Plaintiff, a prisoner of the State of California currently incarcerated at Salinas

Valley State Prison (SVSP), has filed this pro se civil rights complaint under 42 U.S.C. 

§ 1983. Plaintiff seeks leave to proceed in forma pauperis. Venue is proper in this

district because the events complained of arose or occurred in Monterey County. 28

U.S.C. § 1391(b). 

STATEMENT OF FACTS

According to the allegations in the complaint, there exists at SVSP a gang of

prison guards known as the "Green Wall," which is responsible for abusing and harming

inmates, including Plaintiff. Citing an article from the Sacramento Bee newspaper,

Plaintiff alleges that because of the "code of silence" amongst prison guards and officials

throughout the Department of Corrections, the gang's activities continue to be covered

up, without consequence. Plaintiff names as Defendants Roderick Hickman, the Director

of the Department of Corrections, and Governor Schwarzenegger, whom he alleges are

aware of the abuse and cover-ups but have not taken any action to remedy the situation. 

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He seeks injunctive relief, asking this Court to take over control of SVSP or to order the

Defendants to investigate his allegations and to take action. 

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).

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).

ANALYSIS

Plaintiff alleges that Defendants have failed to act to protect his constitutional

rights. Ordinarily, the Eleventh Amendment bars official-capacity suits against state

officials such as Defendants. See Kentucky v. Graham, 472 U.S. 159, 169-70 (1985). 

However, a suit against state officials seeking prospective injunctive relief from

unconstitutional state action is not barred. See id. at 167 n.14; Ex parte Young, 209 U.S.

123, 159-60 (1908). This principle generally is referred to as the Ex parte Young

exception and is limited to prospective injunctive relief from continuing or impending

state action which violates the federal constitution or a federal statute. See Armstrong v.

Wilson, 124 F.3d 1019, 1026 (9th Cir. 1997). Because Plaintiff seeks prospective

injunctive relief from Defendants to remedy alleged constitutional violations, his suit is

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not barred by the Eleventh Amendment. 

However, Plaintiff has not alleged facts sufficient to state a claim upon which

relief may be granted. To state a claim arising under federal law, it must be clear from

the face of the plaintiff's well-pleaded complaint that there is a federal question. Easton

v. Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997). The mere reference to

a federal statute in a pleading will not convert a claim into a federal cause of action. Id. 

While a plaintiff is not required to plead his evidence "or specific factual details not

ascertainable in advance of discovery," Gibson v. United States, 781 F.2d 1334, 1340

(9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987), a pleading will not be sufficient to

state a claim under § 1983 if the allegations are mere conclusions, Kennedy v. H & M

Landing, Inc., 529 F.2d 987, 989 (9th Cir. 1976). And a complaint that fails to state the

specific acts of the defendant which violated the plaintiff's rights fails to meet the

requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure. Hutchinson v.

United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982). Plaintiff asserts that "federal

violations toward this plaintiff are numerous" and that he has been "denied the right to be

free from cruel & unusual punishment, beaten, property thrown away, wittnessed [sic]

many other federal violations to numerous other inmates as well." Complaint at 3. 

These assertions are conclusory, and are insufficient to state a claim for relief under 

§ 1983. Nor do they meet the pleading requirements of Rule 8. 

Moreover, Plaintiff does not set forth specific facts to substantiate his assertions

that he, personally, has suffered injury. Rather, he asks the Court to take action based on

a general atmosphere of alleged fear and abuse at SVSP. This Court is one of limited

jurisdiction, however, and can only decide matters where an individual plaintiff has

standing. The constitutional standing requirement derives from Article III, Section 2 of

the United States Constitution, which restricts adjudication in federal courts to "cases"

and "controversies." See Valley Forge Christian College v. Americans United for

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Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). Article III standing is

present only when (1) a plaintiff suffers a concrete, particularized injury which is actual

or imminent; (2) there is a causal connection between the injury and the conduct

complained of; and (3) the injury will likely be redressed by a favorable decision. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Wedges/Ledges of

California, Inc. v. City of Phoenix, 24 F.3d 56, 61 (9th Cir. 1994); see, e.g., Easyriders

Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1495 (9th Cir. 1996) (plaintiff who

seeks only prospective injunctive relief has no standing to challenge statute on vagueness

grounds because relief sought will not redress any past injury). While Plaintiff

complains of a general harm he has suffered as a result of the acts of rogue prison guards

at SVSP, he does not point to any constitutionally cognizable cause of action for injury

he has suffered personally which was caused by those guards directly and thus can be

redressed by the named Defendants. Thus, he has failed to establish that he has standing

to bring this action. 

Plaintiff might be able to state a claim upon which relief may be granted if he can

in good faith allege facts, subject to proof, which clearly and succinctly identify the

injury he suffered, or continues to suffer, personally as a result of the alleged actions of

"Green Wall" prison guards; identify specifically and link to his allegations the

responsible guards; and provide some support for his assertion that they are members of

the "Green Wall" gang. Without this basic information, the complaint cannot proceed. 

Accordingly, the complaint is DISMISSED WITH LEAVE TO AMEND as set forth

below.

CONCLUSION

For the foregoing reasons and for good cause shown,

1. Leave to proceed in forma pauperis is DENIED without prejudice. (Docket

nos. 3, 4.) If Plaintiff files an amended complaint which complies with this order the

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Court will review the in forma pauperis application anew.

2. Plaintiff's complaint is DISMISSED WITH LEAVE TO AMEND, as

discussed above. Plaintiff shall file an amended complaint within thirty days from the

date of this order. The amendment must include the caption and civil case number used

in this order and the words "COURT ORDERED AMENDED COMPLAINT" on the

first page. Plaintiff's failure to amend or to notify the Court of his intent not to do so

within thirty days will result in the dismissal of the complaint without prejudice and

without further leave to amend. 

3. Plaintiff is advised that an amended complaint supersedes the original

complaint. "[A] plaintiff waives all causes of action alleged in the original complaint

which are not alleged in the amended complaint." London v. Coopers & Lybrand, 644

F.2d 811, 814 (9th Cir. 1981). Defendants not named in an amended complaint are no

longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied,

506 U.S. 915 (1992). 

4. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the

Court informed of any change of address and must comply with the Court's orders in a

timely fashion. Failure to do so may result in the dismissal of this action under Federal

Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

DATED: December 23, 2005 

 

JEFFREY S. WHITE

United States District Judge

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