Connelly v. Branch et al

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND 1 Notice of Removal, filed by D. Bright, M. Mindoro, S. Posson, R. Branch, J. Lewis. Signed by Judge jam on 4/7/17. (lrcS, COURT STAFF) (Filed on 4/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN CONNELLY,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
R. BRANCH, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-01407-JD

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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Defendants removed this case from state court and paid the filing fee. Defendants have also

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requested that the Court screen the complaint.
DISCUSSION

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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

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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).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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United States District Court
Northern District of California

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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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LEGAL CLAIMS

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Plaintiff alleges that he was denied medical treatment and a doctor verbally harassed him.

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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

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indifference.... [Prisoner] would have no claim for deliberate medical indifference unless the

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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).
Allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C.

United States District Court
Northern District of California

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§ 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in part on other

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grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); see, e.g., Keenan v. Hall, 83

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F.3d 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and

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assaultive comments by prison guard not enough to implicate 8th Amendment).
Plaintiff alleges that defendant Branch was verbally hostile to him and later told him to

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continue treatment when plaintiff complained of adverse effects of certain medication. Plaintiff

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alleges that defendant Mindoro denied a sleep apnea treatment device, but the device was later

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provided in July 2015. Plaintiff also alleges that defendants Posson, Lewis and Tarrar1 denied a

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TENS unit for pain treatment and a referral for pain management. Though, the TENS unit was

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later provided in May 2016. Plaintiff also states that defendants denied his inmate appeals related

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to these issues. Plaintiff is informed that there is no constitutional right to a prison administrative

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appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988).

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The complaint is dismissed with leave to amend to provide more information in light of the

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legal standards set forth above. The allegations of verbal harassment and denial of inmate appeals

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Tarrar has not been served.
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fail to state a claim, but plaintiff will be allowed to present more allegations related to these

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claims. With respect to the claims of denial of medical care, plaintiff must present more

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information how defendants were deliberately indifferent to his serious medical needs. He should

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also address how the claims may proceed in that mere delay in providing the TENS unit and sleep

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apnea device, without more, is insufficient to state a claim. Plaintiff must present enough facts

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that plausibly give rise to an entitlement to relief. See Iqbal at 679.
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 case.

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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: April 7, 2017

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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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JOHN CONNELLY,

Case No. 17-cv-01407-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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R. BRANCH, et al.,
Defendants.

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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.

United States District Court
Northern District of California

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That on April 7, 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.

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John Connelly ID: H-83535
Correctional Training Facility (CTF)
P.O. Box 705
Soledad, CA 93960

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Dated: April 7, 2017

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Susan Y. Soong
Clerk, United States District Court

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

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