Eller v. CDCR

Filing 7

Order by Magistrate Judge Nandor J. Vadas granting 3 Motion for order and Dismissing Complaint with Leave to Amend. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 1/25/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISON 7 8 KENNETH WAYNE ELLER, Case No. 16-cv-7139-NJV (PR) Plaintiff, 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. 10 11 CDCR, United States District Court Northern District of California Defendant. Dkt No. 3 12 13 14 15 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.) DISCUSSION 16 17 Standard of Review 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 20 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 27 statement need only “‘give the defendant fair notice of what the . . . . claim is and the grounds 28 upon which it rests.’”” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 2 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 3 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 4 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 6 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United 7 States Supreme Court has recently explained the “plausible on its face” standard of Twombly: 8 “While legal conclusions can provide the framework of a complaint, they must be supported by 9 factual allegations. When there are well-pleaded factual allegations, a court should assume their 10 veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 11 United States District Court Northern District of California 1 v. Iqbal, 556 U.S. 662, 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 13 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 14 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 15 487 U.S. 42, 48 (1988). 16 Legal Claims 17 Plaintiff alleges that defendant has failed to provide him with dentures. 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 (1976); 20 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX 21 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of 22 “deliberate indifference” involves an examination of two elements: the seriousness of the 23 prisoner's medical need and the nature of the defendant's response to that need. Id. at 1059. 24 A “serious” medical need exists if the failure to treat a prisoner’s condition could result in 25 further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of 26 an injury that a reasonable doctor or patient would find important and worthy of comment or 27 treatment; the presence of a medical condition that significantly affects an individual's daily 28 activities; or the existence of chronic and substantial pain are examples of indications that a 2 1 prisoner has a “serious” need for medical treatment. Id. at 1059-60. 2 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 3 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 4 it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of 5 facts from which the inference could be drawn that a substantial risk of serious harm exists,” but 6 he “must also draw the inference.” Id. If a prison official should have been aware of the risk, but 7 was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. 8 Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion 9 between a prisoner-patient and prison medical authorities regarding treatment does not give rise to 10 United States District Court Northern District of California 11 a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Plaintiff seeks to be provided dentures. He has provided exhibits from when he was at San 12 Quentin State Prison, but he is now at Valley State Prison and has provided no information 13 concerning the status of his dentures request. The complaint is dismissed with leave to amend to 14 provide more information. Plaintiff should identify specific defendants at Valley State Prison who 15 have treated him for his dental problems and have denied or delayed his dentures. CONCLUSION 16 17 1. The complaint is DISMISSED with leave to amend in accordance with the standards 18 set forth above. The amended complaint must be filed within twenty-eight (28) days of the date 19 this order is filed and must include the caption and civil case number used in this order and the 20 words AMENDED COMPLAINT on the first page. Because an amended complaint completely 21 replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See 22 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from 23 the original complaint by reference. Failure to amend within the designated time will result in the 24 dismissal of this case. 25 2. Plaintiff’s motion for an order (Docket No. 3) is GRANTED in that plaintiff may show 26 this order to prison officials demonstrating that he has a deadline to file an amended complaint. 27 3. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 28 informed of any change of address by filing a separate paper with the clerk headed “Notice of 3 1 Change of Address,” and must comply with the court's orders in a timely fashion. Failure to do so 2 may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 3 Procedure 41(b). 4 5 IT IS SO ORDERED. Dated: January 25, 2017 ________________________ NANDOR J. VADAS United States Magistrate Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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