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)

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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

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