Cook v. Kamalnath et al

Filing 8

ORDER Dismissing Complaint with Leave to Amend. Signed by Judge Nandor J. Vadas on 2/19/2016. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 2/19/2016)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 EUREKA DIVISION 6 7 ERIC DARNELL COOK, No. C 15-5570 NJV (PR) Plaintiff, 8 P. KAMALNATH, et. al., Defendants. 11 For the Northern District of California United States District Court 10 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. 9 / 12 13 14 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. (Doc. 6.) 15 16 17 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 22 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 23 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 25 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 26 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 27 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 28 omitted). Although in order to state a claim a complaint “does not need detailed factual 1 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 4 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 5 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 6 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 7 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 8 framework of a complaint, they must be supported by factual allegations. When there are 9 well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 11 For the Northern District of California United States District Court 10 679 (2009). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 12 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. Legal Claims 17 Plaintiff alleges that he was given recalled medication which caused side effects. 18 Deliberate indifference to serious medical needs violates the Eighth Amendment's 19 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 20 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 21 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 22 A determination of "deliberate indifference" involves an examination of two elements: the 23 seriousness of the prisoner's medical need and the nature of the defendant's response to 24 that need. Id. at 1059. 25 A "serious" medical need exists if the failure to treat a prisoner's condition could 26 result in further significant injury or the "unnecessary and wanton infliction of pain." Id. The 27 existence of an injury that a reasonable doctor or patient would find important and worthy of 28 2 1 comment or treatment; the presence of a medical condition that significantly affects an 2 individual's daily activities; or the existence of chronic and substantial pain are examples of 3 indications that a prisoner has a "serious" need for medical treatment. Id. at 1059-60. 4 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 5 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 6 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only 7 “be aware of facts from which the inference could be drawn that a substantial risk of serious 8 harm exists,” but he “must also draw the inference.” Id. If a prison official should have 9 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 11 For the Northern District of California United States District Court 10 1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and prison 12 medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. 13 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 14 Plaintiff states that after he was prescribed the psychiatric drug Risperidone, he 15 began to experience side effects of soreness and tenderness in his chest area. Plaintiff 16 states he was suffering from gynecomastia, swelling of the breast tissue in boys and men. 17 Plaintiff was seen by medical staff on April 15, 2015, who began tapering plaintiff off the 18 medication. On April 30, 2015, plaintiff was seen be his doctor and there was no evidence 19 of gynecomastia. On May 21, 2015, plaintiff had a prolactin level check which was in the 20 normal reference range. 21 Plaintiff states that medical staff should have known that Risperidone had been 22 recalled and he includes an exhibit from the Food and Drug Administration concerning the 23 recall. Complaint at 37-38. The exhibit indicates that Risperidone was not recalled, rather 24 specific lots of 3mg and 2mg tablets were recalled in 2010 and 2011 due to an 25 uncharacteristic odor which reportedly could cause temporary gastrointestinal symptoms. 26 Plaintiff has not presented allegations the he could have taken pills from the recalled lots or 27 that even if he did and he is suffering from gynecomastia, it was due to the Risperidone. 28 3 1 Moreover, plaintiff has not presented sufficient allegations that soreness and tenderness in 2 his chest area was a serious medical sufficient to state an Eighth Amendment claim under 3 the standards set forth above. The complaint will be dismissed with leave to amend to 4 address these deficiencies and state a cognizable claim for relief. CONCLUSION 5 6 1. The complaint is DISMISSED with leave to amend in accordance with the 7 standards set forth above. The amended complaint must be filed within twenty-eight (28) 8 days of the date this order is filed and must include the caption and civil case number used 9 in this order and the words AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all 11 For the Northern District of California United States District Court 10 the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 12 1992). He may not incorporate material from the original complaint by reference. Failure to 13 amend within the designated time will result in the dismissal of this action. 14 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 15 court informed of any change of address by filing a separate paper with the clerk headed 16 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 17 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 18 Federal Rule of Civil Procedure 41(b). 19 IT IS SO ORDERED. 20 21 22 Dated: February 19, 2016. NANDOR J. VADAS United States Magistrate Judge 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?