Fortanel v. Ducart et al

Filing 40

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton granting 39 MOTION to Amend/Correct filed by Librado Fortanel. Amended Complaint due by 5/16/2018. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 4/20/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LIBRADO FORTANEL,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-03946-PJH
ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
C. E. DUCART, et al.,

Re: Dkt. No. 39

Defendants.

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42

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U.S.C. § 1983. The court granted defendants’ motion to dismiss and dismissed the

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complaint with leave to amend. Plaintiff has filed a motion to amend that the court

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construes as an amended complaint.
DISCUSSION

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STANDARD OF REVIEW

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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

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police 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

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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

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

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

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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United States District Court
Northern District of California

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allegations. When there are well-pleaded factual allegations, a court should assume their

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veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (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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LEGAL CLAIMS

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Plaintiff states that he has received inadequate medical care.

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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

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banc). A determination of “deliberate indifference” involves an examination of two

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elements: the seriousness of the prisoner's medical need and the nature of the

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defendant's response to 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.
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The existence of an injury that a reasonable doctor or patient would find important and

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

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

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examples of indications that a prisoner has a “serious” need for medical treatment. Id. at

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1059-60.

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a

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

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steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must

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not only “be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists,” but he “must also draw the inference.” Id. If a prison official

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United States District Court
Northern District of California

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

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Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290

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F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and

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

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

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In the original complaint plaintiff alleged that he suffered from coccidioidomycosis,

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also known as valley fever. He identified nine defendants and stated they failed to

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properly treat him while at Pelican Bay State Prison. The court granted defendants’

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motion to dismiss for failure to state a claim noting that plaintiff failed to link the

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defendants with specific actions or specific failures to treat him. The court noted that

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plaintiff only provided bare and conclusory allegations that defendants did not provide

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treatment, and there were no allegations against several of the defendants. The court

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dismissed the complaint with leave to amend and discussed the best manner to file an

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amended complaint and reminded plaintiff that he must include all claims, defendants

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and allegations in the amended complaint.

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Plaintiff’s amended complaint is only three pages long and has failed to cure the

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deficiencies described by the court. Plaintiff only identifies one defendant but fails to

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present a cognizable constitutional claim. The amended complaint is dismissed with
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lea to amen Plaintif is again re
ave
nd.
ff
eminded that if he files a second amended c
s
complaint

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he must include all claim defenda
ms,
ants and alle
egations in the filing. He may no
ot

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corporate material from the original complain by refere
m
m
nt
ence.
inc
CONCLU
USION

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1. The motion to amend (Do
e
ocket No. 3 is GRAN
39)
NTED. The amended complaint
e

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is DISMISSED with leave to amend in accorda
D
D
d
ance with th standard set forth above.
he
ds

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The second amended co
a
omplaint mu be filed no later tha May 16, 2018, and must
ust
an
,
d

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inc
clude the ca
aption and civil case number used in this ord and the words SECOND
c
d
der
e

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AM
MENDED COMPLAINT on the firs page. Be
C
T
st
ecause an amended c
complaint c
completely

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United States District Court
Northern District of California

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rep
places the original com
o
mplaint, plaintiff must include in it all the claims he wish to
t
hes
pre
esent. See Ferdik v. Bonzelet, 96 F.2d 125 1262 (9 Cir. 199
e
B
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58,
9th
92). He may not
inc
corporate material from the original complain by refere
m
m
nt
ence. Failure to file an amended
n
complaint may result in dismissal of this case.
d
2. It is the plaintif respons
s
ff's
sibility to pro
osecute this case. Pla
aintiff must keep the
cou informed of any change of address by filing a separ
urt
d
rate paper w the cle headed
with
erk
“No
otice of Cha
ange of Address,” and must com
d
mply with the court's ord
e
ders in a tim
mely
fas
shion. Failu to do so may resul in the dism
ure
o
lt
missal of th action fo failure to prosecute
his
or
pursuant to Federal Rule of Civil Pr
e
rocedure 41
1(b).
S
RED.
IT IS SO ORDER
ated: April 20, 2018
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Da

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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LI
IBRADO FO
ORTANEL,

Case No. 1
16-cv-03946
6-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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C. E. DUCAR et al.,
RT,
s.
Defendants

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
strict Court, Northern Di
istrict of Cal
lifornia.
Dis

United States District Court
Northern District of California

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That on April 20, 2018, I SERV
n
VED a true a correct c
and
copy(ies) of the attached by placing
d,
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Lib
brado Fortan ID: J-54101
nel
De Vocation Institutio
euel
nal
on
P.O Box 600, Cell D-227
O.
Tra CA 95378-0600
acy,

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Da
ated: April 20 2018
0,

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Cour
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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