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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN EARL WALKER,
Plaintiff,

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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-04361-MEJ (PR)

RONALD DAVIS, et al.,
Defendants.

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INTRODUCTION

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Plaintiff, a prisoner of the State of California currently incarcerated at San Quentin State

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Prison (SQSP), filed this civil rights action pursuant to 42 U.S.C. § 1983, complaining of

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inadequate medical accommodation at that facility. Plaintiff is granted leave to proceed in forma

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pauperis in a separate order. For the reasons stated below, the complaint is dismissed with leave

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to amend.
DISCUSSION

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A.

Standard of Review

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity, or from an officer or an employee of a governmental

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entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be

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granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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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

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not

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necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

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“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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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

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United States District Court
Northern District of California

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

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violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.

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42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that he suffers from epileptic seizures. Notwithstanding this condition, he

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was assigned to an upper bunk. On February 1, 2015, he had a seizure at approximately 11:56

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p.m., causing him to fall from his bunk to the floor. He was knocked unconscious and suffered a

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wound to his head above his right eye. Plaintiff alleges that defendants knew of his epilepsy and

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acted with deliberate indifference in assigning him to an upper bunk. He names as defendants

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SQSP warden Ronald Davis, SQSP chief medical officer Elena Tootell, and John Doe.

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety of prisoners. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an

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Eighth Amendment violation, two requirements are met: (1) the deprivation alleged is, objectively,

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sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate

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health or safety. Id. at 834. Neither negligence nor gross negligence will constitute deliberate

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indifference. See id. at 835-36 & n.4. A prison official cannot be held liable under the Eighth

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Amendment for denying an inmate humane conditions of confinement unless the standard for

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criminal recklessness is met, i.e., the official knows of and disregards an excessive risk to inmate
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health or safety by failing to take reasonable steps to abate it. See id. at 837. The official must

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both be aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference. See id.

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Here, even liberally construed, plaintiff has not stated a claim that defendants were

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deliberately indifferent to his serious medical needs. From the allegations, no reasonable

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inference can be made that defendants were criminally reckless, or that they knew that in giving

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plaintiff an upper bunk, they would be subjecting plaintiff to an excessive risk to his health. Any

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risk posed by an upper bunk is not obvious enough to lead to an inference of subjective awareness

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of a substantial risk of harm to the inmate required to use it.

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Further plaintiff fails to link one or more defendants to his claim. Although plaintiff

United States District Court
Northern District of California

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names three defendants, he proffers no facts to demonstrate what any defendant did or did not do.

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He should not refer to them as a group (e.g., “the defendants”); rather, he should identify each

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involved defendant by name and link each of them to his claim by explaining what each involved

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defendant did or failed to do that caused a violation of his rights. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988). If plaintiff wants to name a supervisor as a defendant, he must allege

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

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between the supervisor’s wrongful conduct and the constitutional violation. See Starr v. Baca,

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652 F.3d 1202, 1206-07 (9th Cir. 2011). Those persons in charge of the prison or in charge of

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medical staff, such as the warden or chief medical officer, have no § 1983 liability based merely

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on the fact that they employ the alleged wrongdoer.

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Finally, plaintiff is cautioned that the use of “Jane Doe” or “John Doe” to identify a

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defendant is not favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980). Although the use of a Doe defendant designation is acceptable to withstand dismissal

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of a complaint at the initial review stage, using a Doe defendant designation creates its own

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problem: the person identified as a Doe cannot be served with process until he or she is identified

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by his or her real name. If plaintiff files an amended complaint and seeks to include the person

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identified as John Doe as a defendant, plaintiff must take steps promptly to discover the full name

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(i.e., first and last name) of John Doe and provide that information to the Court in his amended
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complaint. The burden remains on the plaintiff; the Court cannot undertake to investigate the

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names and identities of unnamed defendants.

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As the complaint currently reads, plaintiff has not stated a cognizable claim against any

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defendant. However, if plaintiff believes that he can cure the deficiencies addressed above, he

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may amend his complaint to do so.
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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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

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United States District Court
Northern District of California

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complaint must include the caption and civil case number used in this order (C 17-4361 MEJ

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(PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must

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indicate which specific, named defendant(s) was involved in each cause of action, what each

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defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated.

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Plaintiff must also provide dates for the alleged incidents. Plaintiff may not incorporate material

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from the prior complaint by reference. If plaintiff files an amended complaint, he must allege, in

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good faith, facts - not merely conclusions of law - that demonstrate that he is entitled to relief

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under the applicable federal statutes. Failure to file an amended complaint within thirty days

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and in accordance with this order will result in the dismissal of this case without prejudice.

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3.

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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4.

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 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).
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

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MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

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