Barajas v. Biggs et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Complaint due by 10/1/2013. Signed by Judge Richard Seeborg on 8/22/13. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 8/22/2013)

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*E-Filed 8/22/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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JOSEPH EDWARD BARAJAS,

United States District Court
For the Northern District of California

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Plaintiff,

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No. C 13-1469 RS (PR)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
DR. ROBERT BIGGS, et al.,

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Defendants.

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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. After having reviewed the complaint pursuant to 28 U.S.C. § 1915A(a), the Court

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DISMISSES the complaint with leave to file an amended complaint on or before October 1,

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2013.

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DISCUSSION
A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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No. C 13-1469 RS (PR)
ORDER DISMISSING COMPLAINT

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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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

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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United States District Court
For the Northern District of California

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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

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

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that medical staff at Salinas Valley and Soledad State Prisons were

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deliberately indifferent to his serious medical needs when they incorrectly diagnosed cancer,

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a diagnosis which led to the allegedly unnecessary removal of his thyroid gland. The

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complaint does not contain sufficient factual matter to state claims for relief. On the facts as

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presently alleged, the removal of the thyroid based on a misdiagnosis constitutes at worst

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negligence, rather than deliberate indifference.

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A prison official is deliberately indifferent if he 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

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abate it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not

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only “be aware of facts from which the inference could be drawn that a substantial risk of

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serious harm exists,” but “must also draw the inference.” Id. Consequently, in order

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for deliberate indifference to be established, there must exist both a purposeful act or failure

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No. C 13-1469 RS (PR)
ORDER DISMISSING COMPLAINT

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to act on the part of the defendant and harm resulting therefrom. See McGuckin v. Smith,

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974F.2d 1050, 1060 (9th Cir. 1992).

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Plaintiff has not stated a claim for relief that is plausible on its face. He must allege

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facts which if true show that the treatment was “medically unacceptable under the

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circumstances” and that defendants embarked on this course in” conscious disregard of an

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excessive risk to plaintiff’s health.” See Toguchi v. Chung, 391 F.3d1051, 1058–60 (9th Cir.

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2004). Plaintiff has made no such showing here. Rather, plaintiff describes actions that

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constitute at worst negligence or gross negligence, neither of which constitutes deliberate

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indifference. See Farmer, 511 U.S. at 835–36 & n.4.

United States District Court
For the Northern District of California

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Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an

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amended complaint on or before October 1, 2013. The first amended complaint must include

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the caption and civil case number used in this order (13-1469 RS(PR)) and the words FIRST

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

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replaces the previous complaints, plaintiff must include in his first amended complaint all the

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claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v.

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

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the prior complaint by reference. Failure to file an amended complaint in accordance with

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this order will result in dismissal of this action without further notice to plaintiff.

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It is 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

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal

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of this action pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: August 22, 2013
RICHARD SEEBORG
United States District Judge

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No. C 13-1469 RS (PR)
ORDER DISMISSING COMPLAINT

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