1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DWAYNE LUCAS, Case No. 21-cv-02282-JST

8 Plaintiff, ORDER VACATING ORDER OF DISMISSAL AND JUDGMENT; 9 v. GRANTING REQUEST TO REOPENING CASE; DISMISSING 10 M ATCHLEY, et al., COMPLAINT WITH LEAVE TO AMEND Defendants. 11 Re: ECF No. 6 12 13 Plaintiff, a state prisoner housed at Salinas Valley State Prison (“SVSP”), filed a pro se 14 civil rights action pursuant to

. This case was dismissed on October 19, 2021 for 15 failure to either pay the full filing and administrative fee, or file a complete in forma pauperis 16 application. ECF Nos. 3, 4. Plaintiff has since filed a pleading indicating that he wishes to 17 proceed with this action, which the Court construes as a request to reopen this action. ECF No. 6. 18 Plaintiff has also filed an application to proceed in forma pauperis. ECF No. 7. For the reasons 19 set forth below, the Court GRANTS the request to reopen this action (ECF No. 6), VACATES the 20 Order of Dismissal and related judgment (ECF Nos. 3, 4); REOPENS this action; and 21 DISMISSES this action with leave to amend. Plaintiff has been granted leave to proceed in forma 22 pauperis in a separate order. 23 DISCUSSION 24 I. Procedural Background 25 On or about March 31, 2021, Plaintiff filed this pro se civil rights action pursuant to 42

. ECF No. 1. That same day, the Clerk of the Court informed Plaintiff that this 27 action was deficient because he had not filed in forma pauperis application or paid the filing and 1 application within twenty-eight days of the date of the order.

On October 19, 2021, the Court 2 dismissed this action without prejudice for failure to submit the complete in forma pauperis 3 application within the time provided, and entered judgment in favor of Defendants. ECF Nos. 3, 4 4. The Court specified that the dismissal was without prejudice to Plaintiff moving to reopen the 5 action, and that any such motion should be accompanied by either the full filing and 6 administrative fee or a complete in forma pauperis application on the correct form. ECF No. 3. 7 Plaintiff has since filed a complete in forma pauperis application, ECF No. 7, and a request 8 to reopen the case, ECF No. 6. 9 II. Granting Request to Reopen Case 10 The Court’s dismissal of this action was without prejudice to Plaintiff moving to reopen 11 the action and addressing the filing fee or in forma pauperis application deficiency. ECF No. 3 at 12 1. Plaintiff has filed a complete in forma pauperis application. ECF No. 7. Accordingly, the 13 Court GRANTS the request to reopen this action (ECF No. 6); VACATES the Order of Dismissal 14 and related judgment (ECF Nos. 3, 4); and ORDERS the Clerk to reopen this action. 15 III. Screening 16 As required by 28 U.S.C. § 1915A(a), the Court conducts a preliminary screening of 17 Plaintiff’s complaint, ECF No. 1. 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi,

989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal,

, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice.

6 To state a claim under

, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

(1988). 10 B. Complaint 11 The complaint names as defendants SVSP Warden M. Atchley and the California 12 Department of Corrections and Rehabilitations Director Kathleen Allison, both in their official 13 capacity. ECF No. 1 at 1-2. The complaint argues that Plaintiff should be, or is, eligible for 14 consideration for release under the “High-Risk Medical Release” program that Governor Newsom 15 announced on July 10, 2010. Plaintiff argues that he is at high risk of contracting COVID due to 16 his underlying health conditions, such as hypertension, and because prison officials are not 17 adequately protecting prisoners, including Plaintiff, from contracting COVID. Plaintiff argues 18 that the failure to release him immediately is the equivalent of condemning him to death and 19 “overthrowing and vacating Plaintiff possibility of parole under SB261 Youth Offender Parole 20 Hearing.” ECF No. 1 at 2-3. 21 The complaint will be dismissed with leave to amend because Plaintiff has not alleged the 22 violation of a right secured by the Constitution or laws of the United States. In preparing an 23 amended complaint, Plaintiff should identify what federal constitutional provision or federal law 24 was violated, and identify what defendants Atchley and Allison specifically did that violated the 25 federal constitutional provision or federal law. Plaintiff should be aware that there is no 26 respondeat superior liability under Section 1983, i.e., liability solely because a defendant is a 27 supervisor or otherwise responsible for the actions or omissions of another. See Mortimer v. Baca, 1 showing of (1) personal involvement in the constitutional deprivation, Rico v. Ducart,

1292, 1303 (9th Cir. 2020); or (2) a sufficient causal connection between the supervisor’s 3 wrongful conduct and the constitutional violation, i.e. if the supervisor knew of the violation and 4 failed to act to prevent it, Rico, 980 F.3d at 1303, or the supervisor engaged in culpable action or 5 inaction in the training, supervision, or control of his subordinates, Rodriguez v. County of Los 6 Angeles,

(9th Cir. 2018), or the supervisor engaged in conduct that showed a 7 reckless or callous indifference to the rights of others, id.; or (3) if the supervisor implemented “a 8 policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving 9 force of the constitutional violation,” Redman v. County of San Diego,

(9th 10 Cir. 1991). 11 CONCLUSION 12 For the foregoing reasons, the Court orders as follows. 13 1. Plaintiff’s request to reopen this action is GRANTED. ECF No. 6. The Clerk shall 14 VACATE the Order of Dismissal and related judgment, and REOPEN this action. 15 2. This complaint is DISMISSED with leave to amend. Within twenty-eight (28) 16 days of the date of this order, Plaintiff shall file an amended complaint that addresses the 17 identified deficiencies. The amended complaint must include the caption and civil case number 18 used in this order, Case No. C 21-02282 JST (PR) and the words “AMENDED COMPLAINT” on 19 the first page. If using the court form complaint, Plaintiff must answer all the questions on the 20 form in order for the action to proceed. An amended complaint completely replaces the previous 21 complaints. See Lacey v. Maricopa Cnty.,

(9th Cir. 2012). Accordingly, 22 Plaintiff must include in his amended complaint all the claims he wishes to present and all of the 23 defendants he wishes to sue, and may not incorporate material from the prior complaint by 24 reference. Failure to file an amended complaint in accordance with this order in the time provided 25 will result in dismissal of this action without further notice to Plaintiff. The Clerk shall include 26 two copies of the court’s complaint form with a copy of this order to Plaintiff. 27 / / / 1 This order terminates ECF No. 6. 2 IT IS SO ORDERED. 3 || Dated: May 16, 2022 . ‘ JON S. TIGAR 5 nited States District Judge 6 7 8 9 10 11 12

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