McElroy v. Adam

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 10/9/19. Amended Pleadings due by 11/12/2019. ***The deputy clerk hereby certifies that on 10/9/2019 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing specifically sent to El McElroy.*** (kcS, COURT STAFF) (Filed on 10/9/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EL MCELROY,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 19-cv-05491-PJH
ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
NANCY ADAM,
Defendant.

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42
U.S.C. § 1983. He has been granted leave to proceed in forma pauperis.
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

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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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allegations. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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United States District Court
Northern District of California

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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 presents many allegations regarding the conditions of his confinement.

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Pursuant to Fed. R. Civ. P. 8(a)(2), a plaintiff must provide “a short and plain

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statement of the claim showing that the pleader is entitled to relief....” Rule 8 requires

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“sufficient allegations to put defendants fairly on notice of the claims against them.”

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McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991)). Accord Richmond v. Nationwide

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Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995) (amended complaint with vague and scanty

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allegations fails to satisfy the notice requirement of Rule 8.) “The propriety of dismissal

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for failure to comply with Rule 8 does not depend on whether the complaint is wholly

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without merit,” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir.1996).

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Moreover, “[M]ultiple claims against a single party are fine, but Claim A against

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Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different
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defendants belong in different suits,” not only to prevent the sort of “morass” that a multi-

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claim, multi-defendant suit can produce, “but also to ensure that prisoners pay the

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required filing fees – for the Prison Litigation Reform Act limits to 3 the number of

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frivolous suits or appeals that any prisoner may file without prepayment of required fees.”

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Id. (citing 28 U.S.C. § 1915(g)).

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

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United States District Court
Northern District of California

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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

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risk of serious harm exists,” but he “must also draw the inference.” Id. If a prison official

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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).
Prisoners have a constitutional right of access to the courts. See Lewis v. Casey,

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518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a

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claim for any violation of the right of access to the courts, the prisoner must prove that

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there was an inadequacy in the prison's legal access program that caused him an actual

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injury. See Lewis, 518 U.S. at 349-51. To prove an actual injury, the prisoner must show

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that the inadequacy in the prison's program hindered his efforts to pursue a non-frivolous

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claim concerning his conviction or conditions of confinement. See id. at 351, 354-55.

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The exact nature of plaintiff’s claims is difficult to discern. Plaintiff first alleges that
defendant Nancy Adam denied him medical care for his asthma and denied him access

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United States District Court
Northern District of California

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to a podiatrist to trim and file his toenails. He also states he was denied men’s absorbent

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briefs, oxygen therapy, sunshields and effective pain killers, though it is not clear what

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medical condition these items were related to. Later plaintiff also discusses the denial of

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a wheelchair, walker, transport vehicle with lift, replacement meals, vitamins and other

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medical needs, but provides few details. Plaintiff then discusses how in general,

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prisoners are denied access to the courts and legal materials and that property clerks fail

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to return items. It is unclear if plaintiff seeks to proceed with a specific claim related to

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these issues.

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The complaint is dismissed with leave to amend to provide more information.

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Plaintiff should only include a few related claims. He must also identify specific

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defendants and describe how they violated his constitutional rights in specific instances.

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General allegations concerning how the prison operates are insufficient.

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With respect to his medical claims plaintiff must describe his specific medical

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needs and how defendant was deliberately indifferent. If certain treatment was denied,

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plaintiff must identify the treatment and why the denial violated his constitutional rights.

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Simply listing various treatments that were denied without providing more information is

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insufficient. For example, plaintiff must describe what asthma treatment was denied and

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how the denial adversely impacted his health. Plaintiff must also describe how his
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medical problems are serious medical needs with respect to the legal standards set forth

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above.

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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

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November 12, 2019, and must include the caption and civil case number used in this

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order and the words 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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United States District Court
Northern District of California

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claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
1992). He may not incorporate material from the original complaint by reference. Failure
to file amended complaint may result in dismissal of this action.
2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the
court informed of any change of address by filing a separate paper with the clerk headed
“Notice of Change of Address,” and must comply with the court's orders in a timely
fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: October 9, 2019

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/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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