Tomas v. Wowack
Filing
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ORDER REOPENING CASE AND GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; DISMISSAL OF COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 8/13/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 8/13/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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SEMPLICIO ALLAN TOMAS,
Plaintiff,
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vs.
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For the Northern District of California
United States District Court
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No. C 12-2808 PJH (PR)
JOHN LEOPOLD, ELLEN PIRIE, NEAL
COONERTY, GREG CAPUT, and
MARK STONE, Santa Cruz County
Supervisors; PHIL WOWAK, Santa Cruz
Sheriff; and DEPUTY SHERIFF DOES
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ORDER REOPENING CASE
AND GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS; DISMISSAL OF
COMPLAINT WITH LEAVE
TO AMEND
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Defendants.
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/
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This is a civil rights case filed pro se by a state prisoner. Plaintiff failed to supply
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sufficient information to determine if he should be allowed to proceed in forma pauperis
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(“IFP”). The court extended the time to provide the information to July 31, 2012. The case
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was dismissed on August 3, 2012, when it appeared plaintiff had not responded. The
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dismissal was in error, however, as plaintiff had filed the required information on July 30,
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but that fact had not come to the court’s attention. The dismissal will be vacated and the
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case reopened.
The court will now screen the complaint.
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DISCUSSION
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A.
Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners
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seek redress from a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and
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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may
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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at
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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police
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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of
the statement need only '"give the defendant fair notice of what the . . . . claim is and the
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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
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omitted). Although in order to state a claim a complaint “does not need detailed factual
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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'
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requires more than labels and conclusions, and a formulaic recitation of the elements of a
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For the Northern District of California
the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;
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United States District Court
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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief
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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is
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plausible on its face." Id. at 570. The United States Supreme Court has recently explained
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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the
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framework of a complaint, they must be supported by factual allegations. When there are
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well-pleaded factual allegations, a court should assume their veracity and then determine
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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct.
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1937, 1950 (2009). Complaints in pro se prisoner cases, such as this one, must be liberally
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construed in favor of the plaintiff when applying the Twombly/Iqbal pleading standard.
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Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
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elements: (1) that a right secured by the Constitution or laws of the United States was
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violated, and (2) that the alleged deprivation was committed by a person acting under the
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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
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B.
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Legal Claims
Plaintiff formerly was confined at the Santa Cruz County Jail. He is civilly detained
as a sexually violent predator. See Cal. Welf. & Inst. Code § 6600 et seq. He contends
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that despite being only a civil detainee he was housed in the Santa Cruz jail with inmates
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charged with crimes or serving jail sentences. He was strip searched. Although he was
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classified for general population protective custody, he was assaulted three times in
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protective custody because of his sex offender status. He alleges that the third assault
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occurred when the brother of his victim was housed in the same unit. At that point he was
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moved to administrative segregation.
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Plaintiff alleges that defendant Sheriff Wowak, as the final policy maker for the jail,
promulgated the policy of treating SVP such as him the same as those charged with or
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convicted of crimes, and failed to properly train his subordinates to avoid the unsafe
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conditions he describes. This is marginally sufficient to state a claim against Wowak.
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For the Northern District of California
United States District Court
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Defendants John Leopold, Ellen Pirie, Neal Coonerty, Greg Caput, and Mark Stone
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are alleged to have been Santa Cruz County supervisors at the relevant time. Plaintiff has
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provided no specific factual allegations as to their involvement in setting the policies that he
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contends caused the violations of his rights, and indeed his contention that the sheriff is the
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final policy maker suggests to the contrary. The claims against them will be dismissed with
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leave to amend.
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In addition, plaintiff’s “First Alleged Claim,” in which he contends that his First and
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Fourteenth Amendment rights to practice his religion were violated, are not supported by
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any factual allegations. It will be dismissed with leave to amend.
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CONCLUSION
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1. The previous dismissal of this case (document number 10 on the docket) is
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VACATED. This case is REOPENED. In light of the IFP information provided, leave to
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proceed in forma pauperis (document 7) is GRANTED.
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2. The complaint is DISMISSED with leave to amend, as indicated above, within
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thirty days from the date of this order. The amended complaint must include the caption
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and civil case number used in this order and the words AMENDED COMPLAINT on the
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first page. Because an amended complaint completely replaces the original complaint,
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plaintiff must include in it all the claims he wishes to present, including those identified in
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this order as sufficient to state a claim. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
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Cir. 1992). He may not incorporate material from the original complaint by reference.
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Failure to amend within the designated time will result in the dismissal of these claims.
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3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the
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court informed of any change of address by filing a separate paper with the clerk headed
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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.
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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to
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Federal Rule of Civil Procedure 41(b).
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Dated: August 13, 2012.
PHYLLIS J. HAMILTON
United States District Judge
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For the Northern District of California
United States District Court
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IT IS SO ORDERED.
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