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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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KENNETH WAYNE ELLER,

Case No. 16-cv-7139-NJV (PR)

Plaintiff,
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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
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CDCR,

United States District Court
Northern District of California

Defendant.

Dkt No. 3

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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

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Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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

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statement need only “‘give the defendant fair notice of what the . . . . claim is and the grounds

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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

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obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United

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States Supreme Court has recently explained the “plausible on its face” standard of Twombly:

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“While legal conclusions can provide the framework of a complaint, they must be supported by

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factual allegations. When there are well-pleaded factual allegations, a court should assume their

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veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft

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United States District Court
Northern District of California

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v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged deprivation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988).

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Legal Claims

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Plaintiff alleges that defendant has failed to provide him with dentures.

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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 (1976);

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

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

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“deliberate indifference” involves an examination of two elements: the seriousness of the

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

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further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of

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

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treatment; the presence of a medical condition that significantly affects an individual's daily

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activities; or the existence of chronic and substantial pain are examples of indications that a
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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 to abate

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it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists,” but

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he “must also draw the inference.” Id. If a prison official should have been aware of the risk, but

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was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.

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Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion

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between a prisoner-patient and prison medical authorities regarding treatment does not give rise to

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United States District Court
Northern District of California

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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

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Quentin State Prison, but he is now at Valley State Prison and has provided no information

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concerning the status of his dentures request. The complaint is dismissed with leave to amend to

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provide more information. Plaintiff should identify specific defendants at Valley State Prison who

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have treated him for his dental problems and have denied or delayed his dentures.
CONCLUSION

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

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set forth above. The amended complaint must be filed within twenty-eight (28) days of the date

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this order is filed and must include the caption and civil case number used in this order and the

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words AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from

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the original complaint by reference. Failure to amend within the designated time will result in the

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dismissal of this case.

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2. Plaintiff’s motion for an order (Docket No. 3) is GRANTED in that plaintiff may show

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this order to prison officials demonstrating that he has a deadline to file an amended complaint.

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3. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of
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Change of Address,” and must comply with the court's orders in a timely fashion. Failure to do so

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may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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IT IS SO ORDERED.
Dated: January 25, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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