MacVicar v. Adams et al

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Matthew MacVicar. Signed by Judge James Donato on 9/3/14. (lrcS, COURT STAFF) (Filed on 9/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MATTHEW MACVICAR,

Case No. 14-cv-03553-JD

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Plaintiff,

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ORDER OF DISMISSAL WITH LEAVE
v.

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TO AMEND

United States District Court
Northern District of California

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Dr. ADAMS, et al.,

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Defendants.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.
He has been granted leave to proceed in forma pauperis.

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DISCUSSION
I.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

United States District Court
Northern District of California

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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II.

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LEGAL CLAIMS
Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs.

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Deliberate indifference to serious medical needs violates the Eighth Amendment’s proscription

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against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc.

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v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of “deliberate

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indifference” involves an examination of two elements: the seriousness of the prisoner's medical

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need and the nature of the defendant’s response to that need. Id. at 1059.

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A serious medical need exists if the failure to treat a prisoner's condition could result in

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further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of

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an injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment, the presence of a medical condition that significantly affects an individual’s daily

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activities, or the existence of chronic and substantial pain are examples of indications that a

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prisoner has a serious need for medical treatment. Id. at 1059-60.

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A prison official is deliberately indifferent if he or she 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 abate

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it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists,” but

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also “must also draw the inference.” Id. If a prison official should have been aware of the risk,

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but did not actually know, the official has not violated the Eighth Amendment, no matter how

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severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A difference

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of opinion between a prisoner-patient and prison medical authorities regarding treatment does not

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give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In

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addition “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical
indifference.... [Prisoner] would have no claim for deliberate medical indifference unless the

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United States District Court
Northern District of California

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denial was harmful.” Shapely v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th

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Cir. 1985).

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Plaintiff describes events at Merced County Jail and North Kern State Prison (“NKSP”)

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which are located in the Eastern District of California, and CTF-Soledad in the Northern District

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of California. On September 20, 2013, plaintiff was transferred to CTF-Soledad. Prior to the

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transfer, plaintiff was experiencing back problems related to a degenerative disc disease in his

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lower lumbar and issues with a hernia. It appears that treatment was delayed at Merced County

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Jail and NKSP. Plaintiff states that doctors at CTF-Soledad did not want to perform surgery

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because plaintiff’s abdominal muscles were severely torn and damaged and an operation could

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result in his back problems worsening. In December 2013, plaintiff underwent surgery at Twin

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Cities Hospital. Plaintiff states that it was a laparoscopic surgery instead of an ‘inscional’

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procedure, which the Court construes to mean a non-invasive open procedure. Plaintiff alleges

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that his medical care violated the Eighth Amendment.

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To the extent plaintiff wishes to raise claims regarding the delay in surgery or his treatment

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at Merced County Jail and NKSP, he should file a case in the Eastern District of California. The

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allegations against the CTF-Soledad defendants are dismissed with leave to amend. Plaintiff must

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identify the specific defendants and describe how they were deliberately indifferent to his serious

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medical needs. A review of plaintiff’s exhibits indicates that shortly after he arrived at CTF3

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Soledad he was seen by a primary care doctor, a specialist regarding his hernia, he received a

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surgery consult, was prescribed increased pain mediation, and surgery was scheduled. While

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plaintiff disagrees with the timing of the surgery, the treatment he received, and the type of

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surgery that was performed, he has failed to adequately describe an Eighth Amendment claim. In

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an amended complaint plaintiff must describe how the actions of medical staff arose to the level of

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a constitutional deprivation.
CONCLUSION

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1.

The complaint is DISMISSED with leave to amend. The amended complaint must

be filed within twenty-eight (28) days of the date this order is filed and must include the caption
and civil case number used in this order and the words AMENDED COMPLAINT on the first

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United States District Court
Northern District of California

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this action.

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2.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: September 3, 2014
______________________________________
JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MATTHEW MACVICAR,

Case No. 14-cv-03553-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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A. ADAMS, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 9/4/2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Matthew MacVicar ID: AP 7085
CTF
P O Box 705
Soledad, CA 93960

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Dated: 9/4/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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