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)

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