Skiscim v. San Quentin State Prison

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 11/30/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/30/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICHAEL A. SKISCIM, Plaintiff, 8 vs. 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND SAN QUENTIN STATE PRISON, 11 For the Northern District of California 10 United States District Court No. C 11-5166 PJH (PR) Defendants. / 12 13 Plaintiff, a prisoner at the California Correctional Center in Susanville, has filed a pro 14 se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in 15 forma pauperis. 16 17 18 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 22 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 23 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 24 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 26 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 27 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 28 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 5 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 6 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 7 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 8 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 9 framework of a complaint, they must be supported by factual allegations. When there are 10 well-pleaded factual allegations, a court should assume their veracity and then determine 11 For the Northern District of California omitted). Although in order to state a claim a complaint “does not need detailed factual 2 United States District Court 1 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct. 12 1937, 1950 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged deprivation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 B. 18 Legal Claims Plaintiff alleges that when he arrived at San Quentin State Prison he passed the 19 physical, and that “[s]hortly after” that he contracted MRSA, which is a virulent 20 staphylococcus infection. He says that he had to have surgery on his shoulder to eliminate 21 the infection, and that as a result he has “major problems” with his left shoulder. 22 As noted above, one element of a section 1983 claim is that a right secured by the 23 Constitution or laws of the United States was violated. Id. Medical claims like this one are 24 actionable under section 1983 only if plaintiff is able to allege facts plausibly asserting that 25 he was the victim of deliberate indifference to a serious medical need, a violation of the 26 Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. 27 Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 28 overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th 2 out a violation of the Eighth Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060-61 3 (9th Cir. 2004). Here, plaintiff alleges no more than that he passed a physical, then 4 contracted MRSA. This is not sufficient to allege even negligence, much less deliberate 5 indifference to a serious medical need. And plaintiff has named as a defendant only “San 6 Quentin State Prison,” which is a state agency and cannot be sued in federal court. See, 7 e.g., Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (holding that Eleventh 8 Amendment immunity extends to suits against state agencies; California Department of 9 Corrections and California Board of Prison Terms entitled to 11th Amendment immunity); 10 Allison v. Cal. Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority 11 For the Northern District of California Cir. 1997) (en banc). A claim of medical malpractice or negligence is insufficient to make 2 United States District Court 1 and San Quentin Prison not persons within meaning of Civil Rights Act). For these 12 reasons, the complaint will be dismissed with leave to amend. 13 14 CONCLUSION 1. For the foregoing reasons, the complaint is DISMISSED with leave to amend, as 15 indicated above, within thirty days from the date of this order. The amended complaint 16 must include the caption and civil case number used in this order and the words 17 AMENDED COMPLAINT on the first page. Because an amended complaint completely 18 replaces the original complaint, plaintiff must include in it all the claims he wishes to 19 present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not 20 incorporate material from the original complaint by reference. Failure to amend within the 21 designated time will result in the dismissal of these claims. 22 2. It is the plaintiff's responsibility to prosecute this case. He must keep the court 23 informed of any change of address by filing a separate paper with the clerk headed “Notice 24 of Change of Address,” and must comply with the court's orders in a timely fashion. 25 IT IS SO ORDERED. 26 Dated: November 30, 2011. PHYLLIS J. HAMILTON United States District Judge 27 28 P:\PRO-SE\PJH\CR.11\SKISCIM5166.DWLTA.wpd 3

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