Treadway v. Malo-Clines et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 11/20/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 11/20/2012)

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1 2 3 *E-Filed 11/20/12* 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Plaintiff, 13 v. 14 15 No. C 12-4039 RS (PR) JOHN L. TREADWAY, CHERYL MALO-CLINES, et al., Defendants. 16 / 17 INTRODUCTION 18 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 19 20 prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a). DISCUSSION 21 22 23 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 24 seeks redress from a governmental entity or officer or employee of a governmental entity. 25 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 26 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 27 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 28 No. C 12-4039 RS (PR) ORDER DISMISSING COMPLAINT 1 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 2 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 3 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 8 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 9 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 10 United States District Court For the Northern District of California 4 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 12 that a right secured by the Constitution or laws of the United States was violated, and 13 that the alleged violation was committed by a person acting under the color of state law. See 14 West v. Atkins, 487 U.S. 42, 48 (1988). 15 B. 16 (1) (2) Legal Claims Plaintiff alleges that defendants, employees of Pelican Bay, Corcoran, and Salinas 17 Valley State Prison, violated his Eighth and Fourteenth Amendment rights. As these 18 defendants acted at different times and in different locations, the claims must be raised in 19 separate civil rights actions. Accordingly, the complaint is DISMISSED with leave to file an 20 amended complaint within 30 days from the date of this order. In the amended complaint, 21 plaintiff must choose which set of defendants (Pelican Bay or Corcoran or Salinas Valley) he 22 wishes to pursue claims against. 23 Plaintiff is reminded that to state a claim that defendants provided constitutionally 24 inadequate medical care, he must allege facts showing that defendants acted with deliberate 25 indifference to his serious medical needs. A prison official is deliberately indifferent if he 26 knows that a prisoner faces a substantial risk of serious harm and disregards that risk by 27 failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994) 28 No. C 12-4039 RS (PR) ORDER DISMISSING COMPLAINT 2 1 (equating standard with that of criminal recklessness). The prison official must not only “be 2 aware of facts from which the inference could be drawn that a substantial risk of serious 3 harm exists,” but “must also draw the inference.” Id. Consequently, in order for deliberate 4 indifference to be established, there must exist both a purposeful act or failure to act on the 5 part of the defendant and harm resulting therefrom. See McGuckin v. Smith, 974 F.2d 1050, 6 1060 (9th Cir. 1992). In order to prevail on a claim of deliberate indifference to medical 7 needs, a plaintiff must establish that the course of treatment the doctors chose was “medically 8 unacceptable under the circumstances” and that they embarked on this course in “conscious 9 disregard of an excessive risk to plaintiff’s health.” See Toguchi v. Chung, 391 F.3d 1051, United States District Court For the Northern District of California 10 1058–60 (9th Cir. 2004). A claim of mere negligence related to medical problems, or a 11 difference of opinion between a prisoner patient and a medical doctor, is not enough to make 12 out a violation of the Eighth Amendment. Id.; Franklin v. Oregon, 662 F.2d 1337, 1344 (9th 13 Cir. 1981). 14 As stated above, plaintiff shall file an amended complaint within 30 days from 15 the date this order is filed. The amended complaint must address all the deficiencies listed 16 above, and include the caption and civil case number used in this order (12-4039 RS (PR)) 17 and the words FIRST AMENDED COMPLAINT on the first page. Because an amended 18 complaint completely replaces the previous complaints, plaintiff must include in his first 19 amended complaint all the claims he wishes to present and all of the defendants he wishes to 20 sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Any claims not raised in 21 the first amended complaint will be deemed waived. Plaintiff may not incorporate material 22 from the prior complaint by reference. Failure to file an amended complaint in accordance 23 with this order will result in dismissal of this action for failure to prosecute. 24 25 26 27 28 No. C 12-4039 RS (PR) ORDER DISMISSING COMPLAINT 3 1 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 2 informed of any change of address by filing a separate paper with the clerk headed “Notice of 3 Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for 4 an extension of time to do so. Failure to comply may result in the dismissal of this 5 action pursuant to Federal Rule of Civil Procedure 41(b). 6 IT IS SO ORDERED. 7 DATED: November 20, 2012 RICHARD SEEBORG United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C 12-4039 RS (PR) ORDER DISMISSING COMPLAINT 4

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