Pelacos v. Muniz et al

Filing 14

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Thelton E. Henderson granting 10 Motion for Leave to File Amended Complaint; denying 11 Motion to Appoint Counsel ; granting 12 Motion for Leave to File Amended Complaint. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 1/10/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ESTABAN PELACOS,

Case No.

16-cv-6666-TEH

Plaintiff,
8
v.

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

9
10

MUNIZ, et. al.,

Dkt Nos. 10, 11, 12

Defendants.

United States District Court
Northern District of California

11
12
13

Plaintiff, a state prisoner, filed this pro se civil rights

14

action under 42 U.S.C. § 1983.

15

proceed in forma pauperis in a separate order.

16

now before the Court for initial screening pursuant to 28 U.S.C.

17

§ 1915A.

Plaintiff is granted leave to
His complaint is

18

I

19

Federal courts must engage in a preliminary screening of

20

cases in which prisoners seek redress from a governmental entity

21

or officer or employee of a governmental entity.

22

1915A(a).

23

the complaint, or any portion of the complaint, if the complaint

24

“is frivolous, malicious, or fails to state a claim upon which

25

relief may be granted,” or “seeks monetary relief from a

26

defendant who is immune from such relief.”

27

Pleadings filed by pro se litigants, however, must be liberally

28

construed.

28 U.S.C. §

The Court must identify cognizable claims or dismiss

Id. § 1915A(b).

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010);

1

Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir.

2

1990).

3

To state a claim under 42 U.S.C. § 1983, a plaintiff must

4

allege two essential elements:

5

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

6

that the alleged violation was committed by a person acting under

7

the color of state law.

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

8
9
10

United States District Court
Northern District of California

11

(1) that a right secured by the

II
Plaintiff alleges that Defendants were deliberately
indifferent to his health and safety.
The Constitution does not mandate comfortable prisons, but

12

neither does it permit inhumane ones.

13

U.S. 825, 832 (1994).

14

prison and the conditions under which he is confined are subject

15

to scrutiny under the Eighth Amendment.

16

509 U.S. 25, 31 (1993).

17

punishment," the Eighth Amendment places restraints on prison

18

officials, who may not, for example, use excessive force against

19

prisoners.

20

Amendment also imposes duties on these officials, who must

21

provide all prisoners with the basic necessities of life such as

22

food, clothing, shelter, sanitation, medical care and personal

23

safety.

24

County Dep't of Social Servs., 489 U.S. 189, 199-200 (1989);

25

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).

26

See Farmer v. Brennan, 511

The treatment a prisoner receives in

See Helling v. McKinney,

In its prohibition of "cruel and unusual

See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).

See Farmer, 511 U.S. at 832; DeShaney v. Winnebago

The

A prison official violates the Eighth Amendment when two

27

requirements are met: (1) the deprivation alleged must be,

28

objectively, sufficiently serious, Farmer v. Brennan, 511 U.S.
2

1

825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298

2

(1991)), and (2) the prison official possesses a sufficiently

3

culpable state of mind, id. (citing Wilson, 501 U.S. at 297).

4

Deliberate indifference to serious medical needs violates

5

the Eighth Amendment's proscription against cruel and unusual

6

punishment.

7

v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

8

grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136

9

(9th Cir. 1997) (en banc).

Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin

A determination of "deliberate

indifference" involves an examination of two elements: the

11
United States District Court
Northern District of California

10

seriousness of the prisoner's medical need and the nature of the

12

defendant's response to that need.

13

Id. at 1059.

A "serious" medical need exists if the failure to treat a

14

prisoner's condition could result in further significant injury

15

or the "unnecessary and wanton infliction of pain."

16

existence of an injury that a reasonable doctor or patient would

17

find important and worthy of comment or treatment; the presence

18

of a medical condition that significantly affects an individual's

19

daily activities; or the existence of chronic and substantial

20

pain are examples of indications that a prisoner has a "serious"

21

need for medical treatment.

22

Id.

The

Id. at 1059-60.

A prison official is deliberately indifferent if he or she

23

knows that a prisoner faces a substantial risk of serious harm

24

and disregards that risk by failing to take reasonable steps to

25

abate it.

26

prison official must not only “be aware of facts from which the

27

inference could be drawn that a substantial risk of serious harm

28

exists,” but he “must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

3

Id.

The

If a prison

1

official should have been aware of the risk, but was not, then

2

the official has not violated the Eighth Amendment, no matter how

3

severe the risk.

Gibson v. County of Washoe, 290 F.3d 1175, 1188

4

(9th Cir. 2002).

“A difference of opinion between a prisoner-

5

patient and prison medical authorities regarding treatment does

6

not give rise to a § 1983 claim.”

7

1337, 1344 (9th Cir. 1981).

8
9

Franklin v. Oregon, 662 F.2d

Plaintiff alleges that two correctional officers were
deliberately indifferent to his health and safety by not
providing him with a cane and then having him walk down a steep

11
United States District Court
Northern District of California

10

ramp where he fell and was injured.

12

is liable for continuing to have inmates walk down this steep

13

ramp despite the risk of injury.

14

sufficient to proceed.

He also alleges a sergeant

These allegations are

15

Plaintiff also states that upon his return to the prison

16

after being treated at the hospital for an injured back, a doctor

17

told him that his back was fine and a lost toe nail was due to

18

fungus.

19

failed to describe the treatment that should have been provided

20

and how it violated the Eighth Amendment.

21

failed to identify this doctor.

22

with leave to amend.

23

about how his rights were violated and he must identify the

24

doctor.

25

appointment to ascertain the doctor’s name.

26

The doctor prescribed fungus cream.

Plaintiff has

Plaintiff has also

This claim will be dismissed

Plaintiff should provide more information

He may wish to review his medical paperwork from that

Plaintiff has also requested that counsel be appointed to

27

assist him in this action.

28

under 28 U.S.C. § 1915(e)(1) to designate counsel to represent an

A district court has the discretion

4

1

indigent civil litigant in exceptional circumstances.

2

Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

3

requires an evaluation of both the likelihood of success on the

4

merits and the ability of the plaintiff to articulate his claims

5

pro se in light of the complexity of the legal issues involved.

6

See id.

7

viewed together before deciding on a request for counsel under §

8

1915 (e)(1).

9

appointment of counsel are not evident and the request is denied.

Here, exceptional circumstances requiring the

III

11
United States District Court
Northern District of California

This

Neither of these factors is dispositive and both must be

10

12

See

For the foregoing reasons, the Court hereby orders as
follows:

13

1.

The motions to file an amended complaint (Docket Nos.

14

10, 12) are GRANTED and the Court has considered those filings.

15

The motion appoint counsel (Docket No. 11) is DENIED.

16

2. Plaintiff’s Complaint is DISMISSED WITH LEAVE TO FILE A

17

FIRST AMENDED COMPLAINT, within twenty-eight days containing all

18

related claims against all Defendants that Plaintiff wishes to

19

proceed against in this action.

20

how each and every Defendant is alleged to have violated

21

Plaintiff’s federally-protected rights.

22

634.

23

used in this order and the words COURT ORDERED FIRST AMENDED

24

COMPLAINT on the first page.

25

file all of his claims in one complaint and not present them

26

piecemeal to the Court in various letters and other documents.

27

Failure to file a proper First Amended Complaint within twenty-

28

eight days of this order will result in this case only proceeding

The pleading must state clearly

See Leer, 844 F.2d at

The pleading must include the caption and civil case number

Plaintiff is advised that he must

5

1

against the two correctional officers and sergeant as described

2

above.

3

2. Plaintiff is advised that the First Amended Complaint

4

will supersede the original Complaint and all other pleadings.

5

Claims and defendants not included in the First Amended Complaint

6

will not be considered by the Court.

7

County, 693 F.3d 896 (9th Cir. 2012) (en banc) ("For claims

8

dismissed with prejudice and without leave to amend, we will not

9

require that they be repled in a subsequent amended complaint to

See Lacey v. Maricopa

preserve them for appeal. But for any claims voluntarily

11
United States District Court
Northern District of California

10

dismissed, we will consider those claims to be waived if not

12

repled.").

13

3. It is Plaintiff’s responsibility to prosecute this

14

action.

15

address by filing a separate paper with the Clerk headed “Notice

16

of Change of Address,” and must comply with the Court’s orders in

17

a timely fashion.

18

of this action for failure to prosecute pursuant to Federal Rule

19

of Civil Procedure 41(b).

20
21

Plaintiff must keep the Court informed of any change of

Failure to do so may result in the dismissal

IT IS SO ORDERED.
Dated: 1/10/2017

22

________________________
THELTON E. HENDERSON
United States District Judge

23
24

G:\PRO-SE\TEH\CR.16\Pelacos6666.dwlta.docx

25
26
27
28
6