Walker v. Davis et al

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Magistrate Judge Maria-Elena James on 10/5/2017. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 10/5/2017)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JOHN EARL WALKER, Plaintiff, 9 United States District Court Northern District of California ORDER OF DISMISSAL WITH LEAVE TO AMEND v. 10 11 Case No. 17-cv-04361-MEJ (PR) RONALD DAVIS, et al., Defendants. 12 13 INTRODUCTION 14 Plaintiff, a prisoner of the State of California currently incarcerated at San Quentin State 15 16 Prison (SQSP), filed this civil rights action pursuant to 42 U.S.C. § 1983, complaining of 17 inadequate medical accommodation at that facility. Plaintiff is granted leave to proceed in forma 18 pauperis in a separate order. For the reasons stated below, the complaint is dismissed with leave 19 to amend. DISCUSSION 20 21 A. Standard of Review 22 A federal court must engage in a preliminary screening of any case in which a prisoner 23 seeks redress from a governmental entity, or from an officer or an employee of a governmental 24 entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and 25 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be 26 granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 27 § 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 28 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 2 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 3 necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the 4 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 5 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 6 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 7 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 8 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 9 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 10 United States District Court Northern District of California 11 right secured by the Constitution or laws of the United States was violated; and (2) that the 12 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 13 42, 48 (1988). 14 B. 15 Legal Claims Plaintiff alleges that he suffers from epileptic seizures. Notwithstanding this condition, he 16 was assigned to an upper bunk. On February 1, 2015, he had a seizure at approximately 11:56 17 p.m., causing him to fall from his bunk to the floor. He was knocked unconscious and suffered a 18 wound to his head above his right eye. Plaintiff alleges that defendants knew of his epilepsy and 19 acted with deliberate indifference in assigning him to an upper bunk. He names as defendants 20 SQSP warden Ronald Davis, SQSP chief medical officer Elena Tootell, and John Doe. 21 The Eighth Amendment requires that prison officials take reasonable measures to 22 guarantee the safety of prisoners. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an 23 Eighth Amendment violation, two requirements are met: (1) the deprivation alleged is, objectively, 24 sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate 25 health or safety. Id. at 834. Neither negligence nor gross negligence will constitute deliberate 26 indifference. See id. at 835-36 & n.4. A prison official cannot be held liable under the Eighth 27 Amendment for denying an inmate humane conditions of confinement unless the standard for 28 criminal recklessness is met, i.e., the official knows of and disregards an excessive risk to inmate 2 1 health or safety by failing to take reasonable steps to abate it. See id. at 837. The official must 2 both be aware of facts from which the inference could be drawn that a substantial risk of serious 3 harm exists, and he must also draw the inference. See id. 4 Here, even liberally construed, plaintiff has not stated a claim that defendants were 5 deliberately indifferent to his serious medical needs. From the allegations, no reasonable 6 inference can be made that defendants were criminally reckless, or that they knew that in giving 7 plaintiff an upper bunk, they would be subjecting plaintiff to an excessive risk to his health. Any 8 risk posed by an upper bunk is not obvious enough to lead to an inference of subjective awareness 9 of a substantial risk of harm to the inmate required to use it. 10 Further plaintiff fails to link one or more defendants to his claim. Although plaintiff United States District Court Northern District of California 11 names three defendants, he proffers no facts to demonstrate what any defendant did or did not do. 12 He should not refer to them as a group (e.g., “the defendants”); rather, he should identify each 13 involved defendant by name and link each of them to his claim by explaining what each involved 14 defendant did or failed to do that caused a violation of his rights. See Leer v. Murphy, 844 F.2d 15 628, 634 (9th Cir. 1988). If plaintiff wants to name a supervisor as a defendant, he must allege 16 (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection 17 between the supervisor’s wrongful conduct and the constitutional violation. See Starr v. Baca, 18 652 F.3d 1202, 1206-07 (9th Cir. 2011). Those persons in charge of the prison or in charge of 19 medical staff, such as the warden or chief medical officer, have no § 1983 liability based merely 20 on the fact that they employ the alleged wrongdoer. 21 Finally, plaintiff is cautioned that the use of “Jane Doe” or “John Doe” to identify a 22 defendant is not favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 23 Cir. 1980). Although the use of a Doe defendant designation is acceptable to withstand dismissal 24 of a complaint at the initial review stage, using a Doe defendant designation creates its own 25 problem: the person identified as a Doe cannot be served with process until he or she is identified 26 by his or her real name. If plaintiff files an amended complaint and seeks to include the person 27 identified as John Doe as a defendant, plaintiff must take steps promptly to discover the full name 28 (i.e., first and last name) of John Doe and provide that information to the Court in his amended 3 1 complaint. The burden remains on the plaintiff; the Court cannot undertake to investigate the 2 names and identities of unnamed defendants. 3 As the complaint currently reads, plaintiff has not stated a cognizable claim against any 4 defendant. However, if plaintiff believes that he can cure the deficiencies addressed above, he 5 may amend his complaint to do so. CONCLUSION 6 7 For the foregoing reasons, the Court hereby orders as follows: 8 1. Plaintiff’s complaint is DISMISSED with leave to amend. 9 2. If plaintiff can cure the pleading deficiencies described above, he shall file an amended complaint within thirty (30) days from the date this order is filed. The amended 11 United States District Court Northern District of California 10 complaint must include the caption and civil case number used in this order (C 17-4361 MEJ 12 (PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must 13 indicate which specific, named defendant(s) was involved in each cause of action, what each 14 defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated. 15 Plaintiff must also provide dates for the alleged incidents. Plaintiff may not incorporate material 16 from the prior complaint by reference. If plaintiff files an amended complaint, he must allege, in 17 good faith, facts - not merely conclusions of law - that demonstrate that he is entitled to relief 18 under the applicable federal statutes. Failure to file an amended complaint within thirty days 19 and in accordance with this order will result in the dismissal of this case without prejudice. 20 3. Plaintiff is advised that an amended complaint supersedes the original complaint. 21 “[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged in 22 the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). 23 Defendants not named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 24 963 F.2d 1258, 1262 (9th Cir. 1992). 25 4. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 26 court informed of any change of address by filing a separate paper with the clerk headed “Notice 27 of Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do 28 so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 4 1 2 3 4 5 Civil Procedure 41(b). The Clerk shall include a copy of the court’s form complaint with a copy of this order to plaintiff. IT IS SO ORDERED. Dated: October 5, 2017 6 7 MARIA-ELENA JAMES United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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