Silverman v. Ivers et al

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Magistrate Judge Maria-Elena James on 9/26/2017 (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 9/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JACOB S. SILVERMAN,
Plaintiff,

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.

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Case No. 17-cv-03700-MEJ (PR)

IVERS, et al.,
Defendants.

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Plaintiff, an inmate at the Humboldt County Correctional Facility, has filed a pro se civil

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United States District Court
Northern District of California

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rights action under 42 U.S.C. § 1983. He is granted leave to proceed in forma pauperis by

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separate order. Based upon a review of the complaint pursuant to 28 U.S.C. § 1915A, it is

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dismissed with leave to amend.
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any

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claims that 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. See 28 U.S.C. § 1915A(b)(1),

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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police

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Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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

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

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B.

Legal Claims
In his complaint, plaintiff alleges that medical staff and grievance personnel at the

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United States District Court
Northern District of California

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Humboldt County Correctional Facility improperly have delayed or denied pain treatment for an

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injury he suffered to his wrist in December 2016. Plaintiff names defendants Dr. Borelson, Nurse

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Practitioner Ivers, Lieutenant Flint, and Lieutenant Christian, but adds insufficient facts linking

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them to his allegations of wrongdoing.

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When a pretrial detainee challenges conditions of his confinement, the proper inquiry is

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whether the conditions amount to punishment in violation of the Due Process Clause of the

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Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). An inmate claiming

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that prison or jail officials have responded inadequately to his medical needs must establish two

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elements to state a claim under § 1983. First, he must identify an objectively serious medical

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need. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (serious medical need exists

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if “failure to treat a prisoner’s condition could result in further significant injury or the

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unnecessary and wanton infliction of pain.”) Second, he must allege that a defendant acted with

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the requisite mental state of deliberate indifference to the risk to the inmate’s health. It appears

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that a pretrial detainee must allege facts to show that a defendant “did not take reasonable

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measures to abate that risk, even though a reasonable officer in the circumstances would have

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appreciated the high degree or risk involved--making the consequences of the defendant’s conduct

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obvious.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016 (en banc). Mere

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negligence or an inadvertent failure to provide adequate medical care does not rise to the level of a

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constitutional violation. See id. at 1071.1
Plaintiff’s allegations that he suffered prolonged pain from injury to his wrist establish that

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he had a serious medical need. However, as noted above, the complaint does not sufficiently link

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any named defendant to his claim that there was a deliberate failure to provide medical treatment.

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Therefore, the claim is dismissed. Dismissal is with leave to amend for plaintiff to add allegations

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that show defendants knew about plaintiff’s serious medical need and deliberately prevented

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plaintiff from receiving medical care or failed to take reasonable measures to abate the risk to his

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health.
In his amended complaint, plaintiff must specifically identify what each named defendant

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did or did not do with regard to each separate claim. Sweeping conclusory allegations will not

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United States District Court
Northern District of California

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suffice. Plaintiff should not refer to the defendants as a group (e.g., “the defendants”); rather, he

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should identify each involved defendant by name and link each of them to his claims by

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explaining what each involved defendant did or failed to do that caused a violation of his rights.

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See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). The Court will not read through exhibits

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to attempt to piece together a claim for a plaintiff. It is a plaintiff’s duty to provide a statement

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that is a complete statement of his claims against each of the defendants. Finally, plaintiff is

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advised that a prison official cannot be liable for damages under § 1983 simply because he is

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responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989).

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In his amended complaint, plaintiff should specify whether he is a pretrial detainee or a

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convicted prisoner. Plaintiff must also complete all sections of the court’s form complaint and

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must sign and date the form complaint.
CONCLUSION

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

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1.

Plaintiff’s complaint is DISMISSED with leave to amend.

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If plaintiff is not a pretrial detainee, but rather a convicted prisoner, the Eighth Amendment’s
subjective standard of deliberate indifference would apply, i.e., the prisoner-plaintiff would have
to show that a defendant knew of and consciously disregarded an excessive risk to inmate health.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

2.

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Within thirty (30) days from the date of this order, plaintiff must file an amended

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complaint to cure the deficiencies noted above, if he truthfully can do so. Plaintiff shall use the

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court’s civil rights complaint form, a copy of which is provided herewith, and include in the

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caption both the case number of this action, No. C 17-3700 MEJ (PR), and the heading

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“AMENDED COMPLAINT.” Failure to file the amended complaint by the deadline will

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result in the dismissal of the action.
3.

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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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Plaintiff may not incorporate material from the prior complaint by reference.
4.

United States District Court
Northern District of California

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

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

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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).
5.

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The Clerk shall send plaintiff a blank civil rights form along with his copy of this

order.

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IT IS SO ORDERED.

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Dated: September 26, 2017

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MARIA-ELENA JAMES
United States Magistrate Judge