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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MICHAEL A. SKISCIM,
Plaintiff,

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vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

SAN QUENTIN STATE PRISON,

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For the Northern District of California

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United States District Court

No. C 11-5166 PJH (PR)

Defendants.
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Plaintiff, a prisoner at the California Correctional Center in Susanville, has filed a pro

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se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in

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forma pauperis.

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DISCUSSION
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

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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

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

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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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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For the Northern District of California

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

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United States District Court

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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
Plaintiff alleges that when he arrived at San Quentin State Prison he passed the

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physical, and that “[s]hortly after” that he contracted MRSA, which is a virulent

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staphylococcus infection. He says that he had to have surgery on his shoulder to eliminate

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the infection, and that as a result he has “major problems” with his left shoulder.

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As noted above, one element of a section 1983 claim is that a right secured by the

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Constitution or laws of the United States was violated. Id. Medical claims like this one are

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actionable under section 1983 only if plaintiff is able to allege facts plausibly asserting that

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he was the victim of deliberate indifference to a serious medical need, a violation of the

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Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v.

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Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),

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overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th
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out a violation of the Eighth Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060-61

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(9th Cir. 2004). Here, plaintiff alleges no more than that he passed a physical, then

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contracted MRSA. This is not sufficient to allege even negligence, much less deliberate

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indifference to a serious medical need. And plaintiff has named as a defendant only “San

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Quentin State Prison,” which is a state agency and cannot be sued in federal court. See,

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e.g., Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (holding that Eleventh

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Amendment immunity extends to suits against state agencies; California Department of

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Corrections and California Board of Prison Terms entitled to 11th Amendment immunity);

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Allison v. Cal. Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority

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For the Northern District of California

Cir. 1997) (en banc). A claim of medical malpractice or negligence is insufficient to make

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United States District Court

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and San Quentin Prison not persons within meaning of Civil Rights Act). For these

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reasons, the complaint will be dismissed with leave to amend.

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CONCLUSION
1. For the foregoing reasons, the complaint is DISMISSED with leave to amend, as

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indicated above, within thirty days from the date of this order. The amended complaint

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must include the caption and civil case number used in this order and the words

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AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the original complaint, plaintiff must include in it all the claims he wishes to

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not

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incorporate material from the original complaint by reference. Failure to amend within the

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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. He must keep the court

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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.

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IT IS SO ORDERED.

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Dated: November 30, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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