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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?