Dixie v. Tilton et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Vaughn R Walker on 7/13/2009. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 7/13/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, a prisoner at Pelican Bay State Prison ("PBSP"), has filed a pro se civil rights complaint under 42 USC section 1983 alleging that the California Department of Corrections and Rehabilitation ("CDCR") and its officials have been deliberately indifferent to his serious medical needs. Specifically, plaintiff v JAMES TILTON, et al, Defendant(s). / JAMES L DIXIE, Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND No C-09-2165 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

claims he was denied dental care from July 11, 1996 to October 18, 2004 and that as a result he now has periodontal disease and tooth loss. In his complaint, plaintiff names as defendants former CDCR

secretary James Tilton, former CDCR director of Prison Health Services Peter Farber-Szekrenyi, former CDCR chief dentist of Adult Operations and Programs William Kuykendali, and the CDCR itself.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff seeks damages.

Doc #1 at 3.

I Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 USC § 1915A(a).

The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id § 1915A(b). Pleadings filed by pro se Balistreri v

litigants, however, must be liberally construed.

Pacifica Police Dep't, 901 F2d 696, 699 (9th Cir 1990). To state a claim under 42 USC section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the

Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v Atkins, 487 US 42, 48 (1988).

A Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v Gamble, 429 US 97, 104 (1976). 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." McGuckin v Smith, 974 F2d 1050, 1059

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(9th Cir 1992) (citing Estelle, 429 US at 104), overruled in part on other grounds by WMX Technologies, Inc v Miller, 104 F3d 1133, 1136 (9th Cir 1997) (en banc). A prison official is "deliberately

indifferent" if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v Brennan, 511 US 825, 837 (1994).

B Liability may be imposed on an individual defendant under section 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally-protected right. See Leer v Murphy, 844 F2d 628, 634 (9th Cir 1988); Harris v City of Roseburg, 664 F2d 1121, 1125 (9th Cir 1981). Sweeping conclusory

allegations will not suffice; the plaintiff must instead "set forth specific facts as to each individual defendant's" deprivation of federally-protected rights. Leer, 844 F2d at 634. Even at the

pleading stage, "[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." 1193, 1194 (9th Cir 1998). Barren v Harrington, 152 F3d

Although the federal rules require

brevity in pleading, a complaint must be sufficient to give the defendants "fair notice" of the claim and the "grounds upon which it rests." Erickson v Pardus, 551 US 89, 93 (2007) (citations District courts, however, must afford pro se prisoner

omitted).

litigants an opportunity to amend to correct any deficiency in their complaints. Lopez v Smith, 203 F3d 1122, 1126-27 (9th Cir 2000) (en

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

banc).

C Liberally construed, plaintiff's allegations appear to state a section 1983 claim for deliberate indifference to his serious medical needs. But his complaint is deficient in that he

fails to set forth specific facts showing how each individual defendant proximately caused the deprivation of a federallyprotected right. As a result, he will be afforded an opportunity to

amend his complaint within thirty days.

II For the foregoing reasons, plaintiff's complaint is DISMISSED WITH LEAVE TO FILE A FIRST AMENDED COMPLAINT containing all related claims against all defendants that plaintiff wishes to proceed against in this action. The pleading must be simple,

concise and direct and must state clearly and succinctly how each and every defendant is alleged to have violated plaintiff's federally-protected rights. F2d at 1125. See Leer, 844 F2d at 634; Harris, 664

The pleading must include the caption and civil case

number used in this order and the words COURT ORDERED FIRST AMENDED COMPLAINT on the first page. Failure to file a proper first amended

complaint within thirty days of this order will result in the dismissal of this action. Plaintiff is advised that the first amended complaint will supersede the original complaint and all other pleadings. Claims

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and defendants not included in the first amended complaint will not be considered by the court. (9th Cir 1987). See King v Atiyeh, 814 F2d 565, 567

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

G:\PRO-SE\VRW\CR.09\Dixie-09-2165.dwlta.wpd

5