1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH OLIVER OWENS, Case No. 18-cv-06636-JD

8 Plaintiff, ORDER REOPENING CASE AND 9 v. DISMISSING COMPLAINT WITH LEAVE TO AMEND 10 MENLO PARK POLICE DEPARTMENT, et al., Re: Dkt. No. 11 11 Defendants.

12 13 Plaintiff, a former detainee, filed a pro se civil rights complaint under

. 14 This case was dismissed without prejudice on February 13, 2019, prior to the screening of the 15 complaint, because mail sent to plaintiff was returned as undeliverable and plaintiff failed to 16 update the Court with a current address. Plaintiff who was homeless at that time has now updated 17 his address and seeks to reopen the case. The case is reopened, and the Court will review the 18 complaint. 19 DISCUSSION 20 STANDARD OF REVIEW 21 Federal courts must engage in a preliminary screening of cases in which prisoners seek 22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 24 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 25 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 26 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 27 Cir. 1990). 1 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 2 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 3 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 4 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 5 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 6 the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007) (citations 7 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 8 face.”

. The United States Supreme Court has explained the “plausible on its face” 9 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 10 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 11 should assume their veracity and then determine whether they plausibly give rise to an entitlement 12 to relief.” Ashcroft v. Iqbal,

(2009). 13 To state a claim under

, a plaintiff must allege that: (1) a right secured by 14 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 15 committed by a person acting under the color of state law. West v. Atkins,

(1988). 16 LEGAL CLAIMS 17 Plaintiff alleges that a Menlo Park police officer assaulted him. He seeks money damages. 18 In order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for 19 other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 20

plaintiff must prove that the conviction or sentence has been reversed on direct 21 appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such 22 determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 23 Heck v. Humphrey,

(1994). A claim for damages bearing that relationship 24 to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 25 487. 26 Plaintiff states that the defendant police officer illegally assaulted him between June 14 27 and June 21, 2016. The allegations in this action are similar to a prior complaint filed by plaintiff 1 failed to update the Court with a current address. See Owens v. Menlo Park Police Dept., Case 2 No. 16-cv-5380 JD. In Case No. 16-5380, the Court noted that plaintiff pled guilty on June 22, 3 2016, and it was not clear if the plea related to allegations in the complaint or if the conviction had 4 been reversed or expunged for plaintiff to obtain money damages. 5 The complaint is dismissed with leave to amend for plaintiff to provide more information. 6 Plaintiff should provide details of the assault, how defendant violated his constitutional rights and 7 if his conviction was related to the assault. Plaintiff should also indicate if he was in custody 8 when the assault occurred and if defendant was a police officer or a deputy at the county jail. 9 Exhibits from Case No. 16-5380 indicate that plaintiff was in custody during the dates plaintiff 10 states the assault occurred. It is unclear if the incident was related to an arrest or occurred while in 11 jail. 12 Plaintiff also presents many allegations against Court staff for failing to send him 13 paperwork in many of his cases. A review of plaintiff’s various cases indicates that he failed to 14 update the Court with his address on multiple occasions. These allegations are meritless and are 15 dismissed with prejudice. 16 CONCLUSION 17 1. Plaintiff’s request to continue with this case is granted and the case is REOPENED. 18 Plaintiff’s motion to proceed in forma pauperis (Docket No. 11) is GRANTED. 19 2. The complaint is DISMISSED with leave to amend. An amended complaint must be 20 filed within twenty-eight (28) days of the date this order is filed and must include the caption and 21 civil case number used in this order and the words AMENDED COMPLAINT on the first page. 22 Because an amended complaint completely replaces the original complaint, plaintiff must include 23 in it all the claims he wishes to present. See Ferdik v. Bonzelet,

(9th Cir. 24 1992). He may not incorporate material from the original complaint by reference. 25 3. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 26 informed of any change of address by filing a separate paper with the clerk headed “Notice of 27 Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 1 Civil Procedure 41(b). 2 IT IS SO ORDERED. 3 Dated: April 30, 2021 4 5 JAMES DQ@HATO 6 United Stptes District Judge 4 8 9 10 11 a 12

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