Goldson v. David
Filing
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ORDER DISMISSING WITH LEAVE TO AMEND. Amended Complaint due by 4/1/2013. Signed by Judge Phyllis J. Hamilton on 3/1/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 3/1/2013)
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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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RODNEY GOLDSON,
Plaintiff,
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vs.
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ORDER DISMISSING WITH
LEAVE TO AMEND
DR. CLARENCE DAVID,
Defendant.
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For the Northern District of California
United States District Court
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No. C 13-0403 PJH (PR)
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Plaintiff, a state prisoner currently incarcerated at San Quentin State Prison, has
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filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to
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proceed in 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.
Legal Claims
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Plaintiff states he has severe joint separation in his left shoulder. The sole
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defendant in this case, Dr. David, refused requests for an X-ray, MRI or a referral to an
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orthopedic specialist, from February 2012 to June 2012. At some point plaintiff was
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referred to an orthopedic specialist who recommended surgery, but Dr. David has denied
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and delayed this recommendation. Plaintiff seeks money damages.
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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.
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.
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A prison official is deliberately indifferent if he or she knows that a prisoner faces a
to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only
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For the Northern District of California
substantial risk of serious harm and disregards that risk by failing to take reasonable steps
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United States District Court
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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). In addition “mere delay of surgery, without
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more, is insufficient to state a claim of deliberate medical indifference.... [Prisoner] would
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have no claim for deliberate medical indifference unless the denial was harmful.” Shapely
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v. Nevada Bd. Of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
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While plaintiff may have a cognizable claim, he only presents brief facts in this
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complaint which indicate a difference of opinion or perhaps mere delay of medical
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treatment. The complaint is dismissed with leave to amend for plaintiff to provide more
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information regarding his joint separation and how delay or denial of surgery has been
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deliberately indifferent to his serious medical needs and why the surgery is required.
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Simply stating defendant has caused unnecessary and wanton infliction of pain is
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insufficient, plaintiff must be more specific.
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CONCLUSION
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1. The complaint is DISMISSED with leave to amend in accordance with the
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standards set forth above. The amended complaint must be filed no later than April 1,
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2013, and 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.
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: March 1, 2013.
PHYLLIS J. HAMILTON
United States District Judge
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