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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 JUAN CARLOS LEMUS, Plaintiff, 8 vs. 9 11 For the Northern District of California United States District Court 10 12 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), 13 Defendants. 14 / 15 Plaintiff, an inmate at the Correctional Training Facility, has filed a pro se civil rights 16 complaint under 42 U.S.C. § 1983. The original complaint was dismissed with leave to 17 amend and plaintiff has filed an amended complaint. 18 DISCUSSION 19 20 A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 21 seek redress from a governmental entity or officer or employee of a governmental entity. 22 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 23 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 24 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 25 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 26 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 27 28 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; 1 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 2 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 3 omitted). Although in order to state a claim a complaint “does not need detailed factual 4 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 5 requires more than labels and conclusions, and a formulaic recitation of the elements of a 6 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 7 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 8 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 9 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 11 For the Northern District of California United States District Court 10 framework of a complaint, they must be supported by factual allegations. When there are 12 well-pleaded factual allegations, a court should assume their veracity and then determine 13 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct. 14 1937, 1950 (2009). 15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 16 elements: (1) that a right secured by the Constitution or laws of the United States was 17 violated, and (2) that the alleged deprivation was committed by a person acting under the 18 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 19 B. 20 Legal Claims In the original complaint, plaintiff asserted that he suffered from Coccidioidomycosis, 21 apparently the disease that is commonly called “Valley Fever.” He stated that he had not 22 received proper medical care for it, but his allegations were conclusory and were against 23 “defendants,” rather than specific named defendants. For instance, he stated that “From 24 September 2009 to March 2010, defendants have repeated denied, delayed, medical tests 25 and providing medical treatment for plaintiff’s Cocci infection [and] failed to provide plaintiff 26 with necessary and pain and infections medications . . . .” Plaintiff was informed that this 27 was insufficient to meet the Iqbal standard. He must provide more specific factual 28 allegations as to what each individual defendant actually did, identified as closely as 2 1 possible by time and location, sufficient to make it plausible that he has a claim for relief 2 against each defendant. 3 Unfortunately, the amended complaint has failed to cure the deficiencies noted in the 4 court’s screening order. While plaintiff has identified some specific defendants his 5 allegations regarding the improper medical treatment remain far too general. Plaintiff 6 contends that a doctor and nurse have denied him proper medical care and have not 7 provided the appropriate medication. Plaintiff has again failed to specifically describe the 8 medical care being denied or even the type of medication and why it was required. Simply 9 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 11 For the Northern District of California United States District Court 10 of the treatment demonstrated deliberate indifference to his serious medical needs. 12 Medical claims like the one presented by plaintiff are actionable under section 1983 13 only if plaintiff is able to allege facts plausibly asserting that he was the victim of deliberate 14 indifference to a serious medical need, a violation of the Eighth Amendment's proscription 15 against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); 16 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX 17 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). The amended 18 complaint is dismissed and plaintiff will allowed one final opportunity to file an amendment 19 to demonstrate a constitutional deprivation. 20 CONCLUSION 21 1. The amended complaint is DISMISSED with leave to amend in accordance with 22 the standards set forth above. The second amended complaint must be filed no later than 23 February 22, 2013, and must include the caption and civil case number used in this order 24 and the words SECOND AMENDED COMPLAINT on the first page. Because an amended 25 complaint completely replaces the original complaint, plaintiff must include in it all the 26 claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 27 He may not incorporate material from the original complaint by reference. Failure to amend 28 within the designated time will result in the dismissal of these claims. 3 1 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 2 court informed of any change of address by filing a separate paper with the clerk headed 3 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 4 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 5 Federal Rule of Civil Procedure 41(b). 6 7 IT IS SO ORDERED. Dated: January 23, 2013. PHYLLIS J. HAMILTON United States District Judge 8 9 G:\PRO-SE\PJH\CR.11\Lemus1099.dwlta.wpd 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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