Bullock v. State of California

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Second Amended Complaint due by 8/29/2014. Signed by Judge Phyllis J. Hamilton on 7/29/14. (Attachments: # 1 Certificate/Proof of Service)(nahS, COURT STAFF) (Filed on 7/29/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 STACEY DWAYNE BULLOCK, Plaintiff, 8 vs. 9 ORDER OF DISMISSAL WITH LEAVE TO AMEND STATE OF CALIFORNIA, Defendant. 11 For the Northern District of California United States District Court 10 No. C 14-2159 PJH (PR) / 12 Plaintiff, a state prisoner incarcerated at San Quentin State Prison, has filed a pro se 13 civil rights complaint under 42 U.S.C. § 1983. The original complaint was dismissed with 14 leave to amend and plaintiff has filed an amended complaint. 15 DISCUSSION 16 A. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 22 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 23 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 25 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 26 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 27 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 28 omitted). Although in order to state a claim a complaint “does not need detailed factual 1 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 4 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 5 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 6 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 7 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 8 framework of a complaint, they must be supported by factual allegations. When there are 9 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, 556 U.S. 662, 11 For the Northern District of California United States District Court 10 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. 17 18 Legal Claims Plaintiff states that he received inadequate medical care at San Quentin State Prison. 19 Deliberate indifference to serious medical needs violates the Eighth Amendment's 20 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 21 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 22 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 23 A determination of "deliberate indifference" involves an examination of two elements: the 24 seriousness of the prisoner's medical need and the nature of the defendant's response to 25 that need. Id. at 1059. 26 A "serious" medical need exists if the failure to treat a prisoner's condition could 27 result in further significant injury or the "unnecessary and wanton infliction of pain." Id. The 28 existence of an injury that a reasonable doctor or patient would find important and worthy of 2 1 comment or treatment; the presence of a medical condition that significantly affects an 2 individual's daily activities; or the existence of chronic and substantial pain are examples of 3 indications that a prisoner has a "serious" need for medical treatment. Id. at 1059-60. 4 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 5 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 6 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only 7 “be aware of facts from which the inference could be drawn that a substantial risk of serious 8 harm exists,” but he “must also draw the inference.” Id. If a prison official should have 9 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 11 For the Northern District of California United States District Court 10 1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and prison 12 medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. 13 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 14 The original complaint was dismissed with leave to amend to provide additional 15 information, yet the amended complaint is only two pages and fails to cure the deficiencies 16 discussed by the court. Plaintiff states that he injured his right hamstring and Nurse Neal 17 failed to provide pain medicine, a wrap, crutches, or move his housing to a ground floor. 18 Plaintiff states that Dr. Espinoza did not perform an X-ray or MRI. No more information is 19 provided. The amended complaint fails to describe a constitutional violation. Plaintiff will 20 be allowed one final opportunity to amend. Plaintiff must provide more information 21 regarding his injuries and how the defendants were deliberately indifferent to his serious 22 medical needs. 23 CONCLUSION 24 1. The amended complaint is DISMISSED with leave to amend in accordance with 25 the standards set forth above. The second amended complaint must be filed no later than 26 August 29, 2014, and must include the caption and civil case number used in this order 27 and the words SECOND AMENDED COMPLAINT on the first page. Because an amended 28 complaint completely replaces the original complaint, plaintiff must include in it all the 3 1 claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 2 He may not incorporate material from the original complaint by reference. 3 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 4 court informed of any change of address by filing a separate paper with the clerk headed 5 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 6 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 7 Federal Rule of Civil Procedure 41(b). 8 9 IT IS SO ORDERED. Dated: July 29, 2014. PHYLLIS J. HAMILTON United States District Judge 11 For the Northern District of California United States District Court 10 G:\PRO-SE\PJH\CR.14\Bullock2159.dwlta2.wpd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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