Martinez v. Chappell

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Second Amended Complaint due by 4/1/2013. Signed by Judge Phyllis J. Hamilton on 2/26/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 2/26/2013)

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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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SANTIAGO MARTINEZ,
Plaintiff,

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vs.

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ORDER DISMISSING WITH
LEAVE TO AMEND

KEVIN R. CHAPPELL,
Defendant.

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For the Northern District of California

United States District Court

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No. C 12-6164 PJH (PR)

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint. Plaintiff’s previous

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complaint was dismissed with leave to amend and plaintiff has filed an amended complaint.

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DISCUSSION

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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

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

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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
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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For the Northern District of California

United States District Court

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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 states he has had lower back pain since the age of thirteen and for the past

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several years in prison he has been prescribed Tramdaol for the pain. Plaintiff was

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prescribed Tramadol and other drugs when he arrived at San Quentin State Prison.

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Several weeks later a blood test indicated that there was no Tramadol in plaintiff’s system

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which is indicative of not taking the medication and in violation of the medication agreement

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between the prison and inmates. As a result, plaintiff was no longer prescribed Tramadol

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and instead prescribed Acetaminophen for the pain. Plaintiff states he expressed his

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symptoms of lower back pain but he is still being denied the Tramadol.

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Deliberate indifference to serious medical needs violates the Eighth Amendment's

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104

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(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
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A determination of "deliberate indifference" involves an examination of two elements: the

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seriousness of the prisoner's medical need and the nature of the defendant's response to

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that need. Id. at 1059.

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A "serious" medical need exists if the failure to treat a prisoner's condition could

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result in further significant injury or the "unnecessary and wanton infliction of pain." Id. The

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existence of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual's daily activities; or the existence of chronic and substantial pain are examples of

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indications that a prisoner has a "serious" need for medical treatment. Id. at 1059-60.
A prison official is deliberately indifferent if he or she knows that a prisoner faces a

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For the Northern District of California

United States District Court

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substantial risk of serious harm and disregards that risk by failing to take reasonable steps

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to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only

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“be aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists,” but he “must also draw the inference.” Id. If a prison official should have

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been aware of the risk, but was not, then the official has not violated the Eighth

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Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175,

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1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and prison

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medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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In this case, plaintiff focuses on the difference of opinion with his medical providers,

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but this alone fails to state a claim. See Franklin. Plaintiff must set forth facts that

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defendants were deliberately indifferent to his serious medical needs. Simply stating that

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he needed Tramadol but was only provided Acetaminophen, without providing more factual

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allegations in support is insufficient. "[A] complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at

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678 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged." Id.
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CONCLUSION

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1. The amended complaint is DISMISSED with leave to amend in accordance with

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the standards set forth above. The second amended complaint must be filed no later than

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April 1, 2013, and must include the caption and civil case number used in this order and

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the words SECOND AMENDED COMPLAINT on the first page. Because an amended

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complaint completely replaces the original complaint, plaintiff must include in it all the

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claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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He may not incorporate material from the original complaint by reference. Failure to amend

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within the designated time will result in the dismissal of these claims.
2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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For the Northern District of California

United States District Court

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

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

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

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: February 26, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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