Treadway v. Hedgpeth et al

Filing 12

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 2/4/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 2/4/2014)

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*E-Filed 2/4/14*
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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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JOHN L. TREADWAY,

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Plaintiff,

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United States District Court
For the Northern District of California

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No. C 13-2113 RS (PR)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
A. HEDGPETH, et al.,

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Defendants.

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/

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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 first amended complaint pursuant to 28 U.S.C.

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§ 1915A(a), the Court DISMISSES the complaint with leave to file a second amended

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complaint on or before March 15, 2014.

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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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§ 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).

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No. C 13-2113 RS (PR)
ORDER DISMISSING COMPLAINT

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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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:

United States District Court
For the Northern District of California

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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 (1) the undersecretary of the California Department of

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Corrections and Rehabilitation (“CDCR”)1; (2) A. Hedgpeth, Warden of Salinas Valley State

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Prison; (3) J. Rhoads, a nurse at Salinas Valley; (4) F. Tuvera, a physician at Salinas Valley;

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(5) D. Bright, a physician at Salinas Valley; (6) R. Mack, a physician at Salinas Valley;

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(7) M. Sepulveda, Chief Medical Officer of the CDCR; and (8) G. Pineda, a contract

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physician, failed to provide, or ensure the provision of, constitutionally adequate medical

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care. When liberally construed, plaintiff’s allegations state Eighth Amendment claims

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against Rhoads, Tuvera, Bright, Mack, and Pineda.

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His allegations against the supervisory defendants (the undersecretary, Hedgpeth, and

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Sepulveda) do not. There is no respondeat superior liability under § 1983. Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). It is not enough that the supervisor merely has a

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supervisory relationship over the defendants; the plaintiff must show that the supervisor

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Plaintiff gives the name “Nernan,” a name that, upon review of current records, is not
connected to the CDCR.

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No. C 13-2113 RS (PR)
ORDER DISMISSING COMPLAINT

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“participated in or directed the violations, or knew of the violations and failed to act to

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prevent them.” Id. Furthermore, supervisor defendants are entitled to qualified immunity

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where the allegations against them are simply “bald” or “conclusory” because such

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allegations do not “plausibly” establish the supervisors’ personal involvement in their

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subordinates’ constitutional wrong. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948–52 (2009). In

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order for these claims to survive review, plaintiff must allege specific facts linking the

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supervisory defendants to the actions of the other defendants, rather than making conclusory

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allegations.
The complaint is DISMISSED with leave to amend. Plaintiff shall file an amended

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United States District Court
For the Northern District of California

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complaint on or before March 15, 2014. The second amended complaint must include the

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caption and civil case number used in this order (13-2113 RS (PR)) and the words SECOND

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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 amended complaint all the

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claims he wishes to present and all of the defendants he wishes to sue, including the claims

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found cognizable above. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Plaintiff may not incorporate material from the prior complaint by reference. Failure to file

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an amended complaint in accordance with this order will result in dismissal of this action

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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 of this action

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

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IT IS SO ORDERED.
DATED: February 4, 2014
RICHARD SEEBORG
United States District Judge

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No. C 13-2113 RS (PR)
ORDER DISMISSING COMPLAINT

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