McCamey

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 11/13/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/13/2012)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

OAKLAND DIVISION

6
7

ROYALTON McCAMEY,
Plaintiff,

8
vs.

9

11
For the Northern District of California

United States District Court

10

No. C 12-1412 PJH (PR)
ORDER DISMISSING
COMPLAINT WITH LEAVE
TO AMEND

SAN FRANCISCO COUNTY JAIL, DR.
VIVAS, NURSE LIEGH and CAPTAIN
PICOT,
Defendants.

12

/
13
BACKGROUND
14
Plaintiff, a prisoner at California State Prison-Solano, has filed a pro se civil rights
15
complaint under 42 U.S.C. § 1983, regarding events at San Francisco County Jail. He has
16
been granted leave to proceed in forma pauperis.
17
SCREENING
18
A.

Standard of Review

19
Federal courts must engage in a preliminary screening of cases in which prisoners
20
seek redress from a governmental entity or officer or employee of a governmental entity.
21
28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and
22
dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may
23
be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at
24
1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police
25
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
26
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of
27
the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;
28
the statement need only '"give the defendant fair notice of what the . . . . claim is and the

1

grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

2

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

3

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

4

requires more than labels and conclusions, and a formulaic recitation of the elements of a

5

cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

6

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

7

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

8

plausible on its face." Id. at 570. The United States Supreme Court has explained the

9

“plausible on its face” standard of Twombly: “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations. When there are

11
For the Northern District of California

United States District Court

10

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

12

whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

13

679 (2009). Complaints in pro se prisoner cases such as this one must be liberally

14

construed in favor of the plaintiff when applying the Twombly/Iqbal pleading standard.

15

Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).

16

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

17

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

18

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

19

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

20

B.

Legal Claims

21

Plaintiff asserts that he suffered a tear to his rotator cuff and knee and a broken

22

finger but he was denied access to see a doctor. He states he submitted requests but

23

defendant nurse Liegh said that multiple requests would not provide faster treatment. It is

24

alleged that defendant Dr. Vivas ordered X-Rays, which showed no broken bones, but

25

plaintiff was still supposed to be taken to San Francisco General Hospital, but he was never

26

sent. Plaintiff states that as a result he suffered serious pain and later obtained surgery on

27

his rotator cuff and knee. Plaintiff provides no more information.

28

///
2

1

These allegations are insufficient to meet the Iqbal standard. Plaintiff must provide

2

specific factual allegations as to what each individual defendant actually did, identified as

3

closely as possible by time and location, sufficient to make it plausible that he has a claim

4

for relief against each defendant. Plaintiff must describe how the individual defendants’

5

actions caused him harm and he must specifically describe that harm. Simply describing

6

Liegh’s statements or that he was not taken to the hospital without providing more

7

information is insufficient. The complaint will be dismissed with leave to amend.

8

CONCLUSION

thirty days from the date of this order. The amended complaint must include the caption

11
For the Northern District of California

1. The complaint is DISMISSED with leave to amend, as indicated above, within

10

United States District Court

9

and civil case number used in this order and the words AMENDED COMPLAINT on the

12

first page. Because an amended complaint completely replaces the original complaint,

13

plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963

14

F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original

15

complaint by reference. Failure to amend within the designated time will result in the

16

dismissal of the complaint.

17

2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

18

court informed of any change of address by filing a separate paper with the clerk headed

19

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

20

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

21

Federal Rule of Civil Procedure 41(b).

22

IT IS SO ORDERED.

23

Dated: November 13, 2012.
PHYLLIS J. HAMILTON
United States District Judge

24
25
26

G:\PRO-SE\PJH\CR.12\McCamey1412.dwlta.wpd

27
28
3