Simental v. Adams et al

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Magistrate Judge Maria-Elena James on 4/6/2017. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 4/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RUDY SIMENTAL,
Plaintiff,

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N. ADAMS, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.

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Case No. 17-cv-00801-MEJ (PR)

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INTRODUCTION

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Plaintiff, a California state inmate, filed this pro se civil rights complaint under 42 U.S.C.

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§ 1983 claiming that defendants were deliberately indifferent to his serious medical needs.

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Plaintiff is granted leave to proceed in forma pauperis in a separate order. For the reasons stated

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below, the complaint is dismissed with leave to amend.
DISCUSSION

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A.

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). The court must identify cognizable claims or dismiss the complaint, or any portion of

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the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief

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may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id.

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§ 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th 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.” “Specific facts are not necessary; the

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statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although

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in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s

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obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level.” Bell

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Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint

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must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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United States District Court
Northern District of California

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the alleged violation was committed by a person acting under the color of state law. West v.

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

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B.

Legal Claims

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In his complaint, plaintiff alleges that defendant prison officials and staff delayed in

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diagnosing and treating a cancerous tumor in his right leg. Even after he finally received surgery,

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plaintiff alleges, defendants failed to provide necessary pain relief and physical accommodations

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and failed to follow discharge orders from the outside hospitals that treated him. Plaintiff alleges

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that this deficient medical treatment began at Pelican Bay State Prison (“PBSP”), where we was

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incarcerated from 2013 to July 2015, and at California State Prison, Sacramento (“CSP-SAC”),

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where he was transferred in July 2015 so that he could be closer to his treatment facility.

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Deliberate indifference to a prisoner’s serious medical needs violates the Eighth

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Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97,

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104 (1976). A determination of “deliberate indifference” involves an examination of two

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elements: the seriousness of the prisoner’s medical need and the nature of the defendant’s response

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

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grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A

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prison official acts with deliberate indifference if he knows that a prisoner faces a substantial risk

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of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v.

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Brennan, 511 U.S. 825, 837 (1994). The defendant must not only “be aware of facts from which

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the inference could be drawn that a substantial risk of serious harm exists,” but he “must also draw

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the inference.” Id. If the defendant should have been aware of the risk, but was not, then he has

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not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe,

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290 F.3d 1175, 1188 (9th Cir. 2002).
Neither negligence nor gross negligence warrant liability under the Eighth Amendment.

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Id. at 835-36 & n4. An “official’s failure to alleviate a significant risk that he should have

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perceived but did not, . . . cannot under our cases be condemned as the infliction of punishment.”

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Id. at 838. Instead, “the official’s conduct must have been ‘wanton,’ which turns not upon its

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effect on the prisoner, but rather, upon the constraints facing the official.” Frost v. Agnos, 152

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United States District Court
Northern District of California

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F.3d 1124, 1128 (9th Cir. 1998) (citing Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)). Prison

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officials violate their constitutional obligation only by “intentionally denying or delaying access to

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medical care.” Estelle, 429 U.S. at 104-05.

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Liberally construed, the complaint adequately alleges a claim for deliberate indifference to

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serious medical needs in violation of the Eighth Amendment as against defendants N. Adams, MD

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and D. Bodenhammer, PA-C. However, the complaint does not state a claim against the other

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defendants plaintiff identifies by name. In addition to Adams and Bodenhammer, plaintiff names

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M. Sayre, MD, J. Bal, MD, J. Arriola, RN, C. Regules, and J. Lewis as defendants, but provides

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no facts linking them to his allegations of wrongdoing. Even at the pleading stage, “[a] plaintiff

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must allege facts, not simply conclusions, that show that an individual was personally involved in

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the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998);

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Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Plaintiff’s allegations will be dismissed with

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leave to amend to show what actions each defendant took or failed to take that caused the Eighth

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Amendment violations. Sweeping conclusory allegations will not suffice; plaintiff must instead

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“set forth specific facts as to each individual defendant’s deliberate indifference.” Leer, 844 F.2d

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at 634.

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The Court notes that plaintiff names M. Sayre in his capacity as Chief Medical Officer for
PBSP, C. Regules in his capacity as the Chief Support Executive for CSP-SAC, and J. Lewis in

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his capacity as the Deputy Director for Policy and Risk Management Services at California

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Correctional Healthcare Services. Plaintiff is advised that a supervisor is not liable merely

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because the supervisor is responsible, in general terms, for the actions of another. Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d

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675, 680-81 (9th Cir. 1984). A supervisor may be liable only on a showing of (1) personal

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involvement in the constitutional deprivation or (2) a sufficient causal connection between the

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supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d

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991, 1003-04 (9th Cir. 2012).

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Finally, plaintiff has a Doe defendant problem. Specifically, plaintiff names Does 1-3 at
CSP-SAC as defendants, but the complaint does not state a claim against Does 1-3. Specifically,

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United States District Court
Northern District of California

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as with the five defendants discussed above, the complaint provides insufficient facts linking Does

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1-3 to plaintiff’s allegations of wrongdoing. Further, plaintiff is advised that the use of “Jane

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Doe” or “John Doe” to identify a defendant is not favored in the Ninth Circuit. See Gillespie v.

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Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Although the use of a Doe defendant designation is

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acceptable to withstand dismissal of a complaint at the initial review stage, using a Doe defendant

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designation creates its own problem: the person identified as a Doe cannot be served with process

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until he or she is identified by his or her real name. If plaintiff files an amended complaint,

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plaintiff must take steps promptly to discover the full name (i.e., first and last name) of each of the

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Doe defendants and provide that information to the Court in his amended complaint. The burden

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remains on the plaintiff; the Court cannot undertake to investigate the names and identities of

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unnamed defendants.
CONCLUSION

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For the reasons stated above, the Court orders as follows:

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The complaint is dismissed with leave to amend. If plaintiff believes he can cure

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the above-mentioned deficiencies in good faith, plaintiff must file an AMENDED COMPLAINT

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within thirty (30) days from the date of this order. The pleading must be simple and concise and

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must include the caption and civil case number used in this order (17-0801 MEJ (PR)) and the

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words AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from

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the prior complaint by reference. Failure to file the amended complaint by the deadline will

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result in the dismissal of the action. The Clerk of the Court is directed to send plaintiff a blank

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civil rights form along with his copy of this order.

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2.

Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged in

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the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1262 (9th Cir. 1992).

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3.

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

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

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United States District Court
Northern District of California

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

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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: April 6, 2017

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MARIA-ELENA JAMES
United States Magistrate Judge