Alford v. MSCC Medical Staff et al

Filing 13

ORDER OF DISMISSAL WITH FURTHER LEAVE TO AMEND. Signed by Magistrate Judge Jacqueline Scott Corley on 8/24/2017. (ahm, COURT STAFF) (Filed on 8/24/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 AARON ROBERT ALFORD, 7 Plaintiff, 8 ORDER OF DISMISSAL WITH FURTHER LEAVE TO AMEND v. 9 CAL REMINGTON, et al., 10 Defendants. 11 United States District Court Northern District of California Case No.17-cv-00460-JSC Plaintiff, an inmate at the Maple Street Correctional Center (“MSCC”) in Redwood City, 12 13 California, filed this pro se civil rights complaint under 42 U.S.C. ' 1983 against Cal Remington, 14 the “Head” of San Mateo County Correctional Health Services, and Dr. Douglas Spencer, a doctor 15 at MSCC. 1 He alleged that he did not receive the correct medication from the person dispensing 16 medicine at MSCC. After reviewing the complaint under 28 U.S.C. § 1915A(a), the Court found 17 that Plaintiff had not stated a cognizable claim for relief against Defendants because he had not 18 alleged what they had done or failed to do to cause him to receive the wrong medication. See 19 Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1085 (9th Cir. 2013). The 20 complaint was dismissed with leave to file an amended complaint correcting this deficiency, and 21 Plaintiff was cautioned that if he did not do so this case would be dismissed. Plaintiff has filed a timely amended complaint alleging that on one occasion an unnamed 22 23 nurse failed to look up what medication Plaintiff required, and she gave him medication for 24 diabetes and high blood pressure instead of Benadryl (which Plaintiff took for a rash). There are 25 no allegations in the amended complaint as to what Remington or Spencer did or failed to do, let 26 alone that they caused Plaintiff to receive the wrong medication. If they are the nurse’s supervisor 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 4.) 1 or employer, that does not render them liable because under no circumstances is there liability 2 under Section 1983 for an employer or supervisor solely because he or she is responsible for the 3 actions or omissions of a subordinate or employee. See Taylor v. List, 880 F.2d 1040, 1045 (9th 4 Cir. 1989). As Plaintiff’s first amended complaint does not cure the deficiencies in the original 5 complaint, it is DISMISSED. 6 The allegations in the first amended complaint, when liberally construed, do state a 7 cognizable claim against the nurse under the Eighth Amendment for deliberate indifference to his 8 medical needs, but Plaintiff does not list the nurse as a defendant. If Plaintiff wants to sue the 9 nurse, he must file another amended complaint in which he names the nurse as a defendant. Within sixty days of the date this order is filed, Plaintiff may file a second amended complaint that 11 United States District Court Northern District of California 10 names the nurse as a defendant and provides his or her current location, or show cause why he 12 needs additional time to do so. If Plaintiff wishes to conduct discovery to ascertain the nurse’s 13 name, he may do so at this time. The second amended complaint must include the caption and 14 civil case number used in this order (No. C 17-0460 JSC (PR)) and the words “COURT- 15 16 17 18 19 20 21 22 ORDERED SECOND AMENDED COMPLAINT” on the first page. Because an amended complaint completely replaces the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material from the original or first amended complaint by reference; he must include in his second amended complaint all the claims he wishes to pursue. Failure to amend within the designated time and in accordance with this order will result in the dismissal of this action. IT IS SO ORDERED. Dated: August 24, 2017 23 24 JACQUELINE SCOTT CORLEY United States Magistrate Judge 25 26 27 28 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AARON ROBERT ALFORD, Case No. 17-cv-00460-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 CAL REMINGTON, et al., Defendants. United States District Court Northern District of California 11 12 13 14 15 16 17 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 August 24, 2017, 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. 18 19 20 Aaron Robert Alford 318 Palmetto Avenue #147 Pacifica, CA 94044 21 22 Dated: August 24, 2017 23 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 3

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