Garcia v. Dr. Kalisher et al

Filing 4

ORDER of Dismissal with Leave to Amend. Signed by Judge Nandor Vadas on 4/22/2015. (njvlc1, COURT STAFF) (Filed on 4/22/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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DANNY GARCIA,
No. C 15-0045 NJV (PR)
Plaintiff,

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DR. KALISHER, et. al.,
Defendants.

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For the Northern District of California

United States District Court

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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Plaintiff, a state prisoner at California Training Facility, has filed a pro se civil rights

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complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma

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pauperis. (Doc. 3.)

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DISCUSSION
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

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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;

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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

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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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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For the Northern District of California

omitted). Although in order to state a claim a complaint “does not need detailed factual

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United States District Court

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

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679 (2009).
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.

Legal Claims

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Plaintiff alleges he was provided inadequate medical care.

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Deliberate indifference to serious medical needs violates the Eighth Amendment's

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104

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(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

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A determination of "deliberate indifference" involves an examination of two elements: the

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seriousness of the prisoner's medical need and the nature of the defendant's response to

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that need. Id. at 1059.

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A "serious" medical need exists if the failure to treat a prisoner's condition could
result in further significant injury or the "unnecessary and wanton infliction of pain." Id. The

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existence of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual's daily activities; or the existence of chronic and substantial pain are examples of

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indications that a prisoner has a "serious" need for medical treatment. Id. at 1059-60.

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a

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substantial risk of serious harm and disregards that risk by failing to take reasonable steps

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to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only

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“be aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists,” but he “must also draw the inference.” Id. If a prison official should have
been aware of the risk, but was not, then the official has not violated the Eighth

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For the Northern District of California

United States District Court

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Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175,

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1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and prison

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medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Plaintiff states that he was in pain and requested medical help but Nurse Mandage

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turned him away. He states that he went “man down” but correctional officer Hernandez

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did not help. Plaintiff states five month later he was diagnosed with a cancerous tumor and

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received surgery and chemotherapy. He also states that one night nurses Gurkey and

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Mandage refused to give him his blood thinner treatment. He states his leg swelled and

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nurse Gurkey stated it was alright and if he tried to go “man down” he would not be treated.

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Dr. Kalisher is also named as a defendant but there no allegations against this individual in

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the complaint. He also states that his life is still in danger because defendants are not

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following the instructions of the oncologist, yet plaintiff does not describe the instructions

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being ignored.

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While plaintiff may have a cognizable claim under the Eighth Amendment he has

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only presented brief allegations and little supporting information regarding the actions of the

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named defendants for most of his claims. His allegation that he was refused a blood

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thinner treatment is sufficient to proceed. However, the complaint will be dismissed with

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leave to amend to provide more information on the specific actions of each defendant and

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how they were deliberately indifferent to his serious medical needs so he can proceed with

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the other allegations. Plaintiff alleges that a nurse turned him away and then several

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months later he was diagnosed with cancer. He must provide more information on the

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actions of the defendants, the treatment he was denied, and the treatment he should have

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received. Failure to file an amended complaint will result in this case proceeding only on

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the one claim described above.
CONCLUSION

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1. The complaint is DISMISSED with leave to amend in accordance with the

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For the Northern District of California

United States District Court

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standards set forth above. The amended complaint must be filed within twenty-eight (28)

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days of the date this order is filed and must include the caption and civil case number used

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in this order and the words AMENDED COMPLAINT on the first page. Because an

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amended complaint completely replaces the original complaint, plaintiff must include in it all

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the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

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1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of all claims except the one

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cognizable claim discussed above.

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2. 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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IT IS SO ORDERED.
Dated: April 22, 2015.
NANDOR J. VADAS
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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DANNY GARCIA,

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Plaintiff,
v.

CERTIFICATE OF SERVICE

DR. KALISHER, et al.,
Defendants.
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For the Northern District of California

United States District Court

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No. 1:15-CV- 0045 NJV

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I, the undersigned, hereby certify that on April 22, 2015, I SERVED a true and correct copy
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of the attached, by placing said copy in a postage paid envelope addressed to the person(s) listed
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below, by depositing said envelope in the U.S. Mail.
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Danny R. Garcia
V-30568
California Training Facility
North Rainier "A" 112 low
P.O. Box 705
Soledad, CA 93960

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____________________________________
Linn Van Meter
Administrative Law Clerk to
the Honorable Nandor J. Vadas

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