Lemus v. Sullivan et al

Filing 17

ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 1/23/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 1/23/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JUAN CARLOS LEMUS,
Plaintiff,

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vs.

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For the Northern District of California

United States District Court

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No. C 11-1099 PJH (PR)
ORDER DISMISSING
AMENDED COMPLAINT
WITH LEAVE TO AMEND

CORRECTIONAL TRAINING FACILITY
EMPLOYEES; DR. E. SULLIVAN, DR. J.
LEE, RN A. COLEMAN, CMO D.
JACOBSEN, B. DIXON, JANE DOES
AND JOHN DOES (1-20), and
DIRECTOR M. CATE (CDCR),

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Defendants.
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Plaintiff, an inmate at the Correctional Training Facility, has filed a pro se civil rights

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complaint under 42 U.S.C. § 1983. The original complaint was dismissed with leave to

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amend and plaintiff has filed an amended complaint.

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DISCUSSION

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A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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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

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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

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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).

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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;

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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

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omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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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

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained
the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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For the Northern District of California

United States District Court

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1950 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
In the original complaint, plaintiff asserted that he suffered from Coccidioidomycosis,

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apparently the disease that is commonly called “Valley Fever.” He stated that he had not

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received proper medical care for it, but his allegations were conclusory and were against

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“defendants,” rather than specific named defendants. For instance, he stated that “From

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September 2009 to March 2010, defendants have repeated denied, delayed, medical tests

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and providing medical treatment for plaintiff’s Cocci infection [and] failed to provide plaintiff

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with necessary and pain and infections medications . . . .” Plaintiff was informed that this

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was insufficient to meet the Iqbal standard. He must provide more specific factual

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allegations as to what each individual defendant actually did, identified as closely as
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possible by time and location, sufficient to make it plausible that he has a claim for relief

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against each defendant.

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Unfortunately, the amended complaint has failed to cure the deficiencies noted in the

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court’s screening order. While plaintiff has identified some specific defendants his

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allegations regarding the improper medical treatment remain far too general. Plaintiff

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contends that a doctor and nurse have denied him proper medical care and have not

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provided the appropriate medication. Plaintiff has again failed to specifically describe the

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medical care being denied or even the type of medication and why it was required. Simply

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saying that defendants failed to properly treat Valley Fever is insufficient. Plaintiff must
describe the treatment that was denied, what was required and why the defendants’ denial

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For the Northern District of California

United States District Court

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of the treatment demonstrated deliberate indifference to his serious medical needs.

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Medical claims like the one presented by plaintiff are actionable under section 1983

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only if plaintiff is able to allege facts plausibly asserting that he was the victim of deliberate

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indifference to a serious medical need, a violation of the Eighth Amendment's proscription

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against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976);

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

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). The amended

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complaint is dismissed and plaintiff will allowed one final opportunity to file an amendment

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to demonstrate a constitutional deprivation.

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CONCLUSION

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1. The amended complaint is DISMISSED with leave to amend in accordance with

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the standards set forth above. The second amended complaint must be filed no later than

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February 22, 2013, and must include the caption and civil case number used in this order

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and the words SECOND AMENDED COMPLAINT on the first page. Because an amended

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complaint completely replaces the original complaint, plaintiff must include in it all the

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claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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He may not incorporate material from the original complaint by reference. Failure to amend

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within the designated time will result in the dismissal of these claims.
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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

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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: January 23, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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