Atterbury v. Grazaini et al

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 8/30/10. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 8/30/2010)

Atterbury v. Grazaini et al

Doc. 8

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Plaintiff, a former civil detainee at Napa State Hospital ("NSH"), proceeding pro se, filed 17 a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff's motion for leave to proceed in 18 forma pauperis is GRANTED. For the reasons stated below, the Court dismisses the complaint 19 with leave to amend. 20 21 A. 22 A federal court must conduct a preliminary screening in any case in which a prisoner 23 seeks redress from a governmental entity or officer or employee of a governmental entity. See 24 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss 25 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 26 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 27 § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. 28
Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.LHK\CR.10\Atterbury274dwla.wpd

DANNY F. ATTERBURY, Plaintiff, v. DAVE GRAZAINI, et al., Defendants.

) ) ) ) ) ) ) ) ) )

No. C 10-0274 LHK (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND

(Docket No. 2)

DISCUSSION Standard of Review

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). B. Legal Claims Plaintiff alleges that Defendants individually and collectively prevented him from obtaining proper medical treatment. (Complaint at 2.) Plaintiff further alleges that Defendants abused him by preventing him from "obtaining adequate and proper exercise, fresh air, medicines, and food." (Id. at 2-3.) Finally, Plaintiff alleges that Dr. Raymond unnecessarily removed Plaintiff's gall bladder, which resulted in a potentially fatal medical condition. (Id. at 3.) The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The conditions under which a prisoner is confined are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). The Amendment also imposes duties on officials who must provide all prisoners with the basic necessities of life such as food, clothing, shelter, sanitation, medical care and personal safety. See Farmer, 511 U.S. at 832. In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, a court must consider the circumstances, nature, and duration of the deprivation. The more basic the need, the shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Substantial deprivations of shelter, food, drinking water or sanitation for four days, for example, are sufficiently serious to satisfy the objective component of an Eighth Amendment claim. See id. at 732-733. Also, deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that
Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.LHK\CR.10\Atterbury274dwla.wpd

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

need. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). However, the action cannot proceed here because Plaintiff has not provided the Court with the information necessary to determine whether a cognizable claim for relief has been stated against any specifically named Defendant. A complaint that fails to state the specific acts of the defendant which violated the plaintiff's rights fails to meet the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure. Hutchinson v. United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982). However, district courts must afford pro se prisoner litigants an opportunity to amend to correct any deficiency in their complaints. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). In this case, Plaintiff's complaint fails to provide a short and plain statement regarding each claim, including the conduct of each individual defendant that he asserts is responsible for a constitutional violation. Plaintiff must specifically identify what each named defendant did or did not do in order to state a claim with regard to each separate claim. As such, Plaintiff will be granted leave to amend to allege specifics. In his amended complaint, Plaintiff must establish legal liability of each person for the claimed violation of his rights. Liability may be imposed on an individual defendant under section 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of section 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633; see, e.g., Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (prison official's failure to intervene to prevent Eighth Amendment violation may be basis for liability). Sweeping conclusory allegations will not suffice; Plaintiff must instead "set forth specific facts as to each individual defendant's" deprivation of protected rights. Leer, 844 F.2d at 634. Also, Plaintiff names as defendants Dave Grazaini, former NSH Executive Director,
Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.LHK\CR.10\Atterbury274dwla.wpd

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Jeffrey Zwein, former NSH Medical Director, and Ed Foulk, current NSH Executive Director. Plaintiff should be mindful that a supervisor may be liable under § 1983 only upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). A supervisor therefore generally "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff's inclusion of these supervisory defendants on the apparent basis that they are liable under a respondeat superior theory is insufficient. See id. In sum, Plaintiff's allegations fail to specifically state what unlawful conduct is attributable to any named defendant. Without this basic information, the complaint cannot proceed. The complaint need not be long. In fact, a brief and clear statement with regard to each claim listing each Defendant's actions regarding that claim is preferable. Accordingly, the complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff will be provided with thirty days in which to amend to correct the deficiencies in his complaint. CONCLUSION 1. 2. Plaintiff's complaint is DISMISSED without prejudice with leave to amend. Plaintiff shall file an AMENDED COMPLAINT within thirty days from the date

this order is filed to cure the deficiencies described above. The amended complaint must include the caption and civil case number used in this order (C 10-0274 LHK (PR)) and the words AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from the prior complaint by reference. Failure to file an amended complaint within thirty days and in accordance with this order will result in dismissal of this action. The Clerk of the Court shall send Petitioner a blank civil rights form along with his copy of this Order. 4. Plaintiff is advised that an amended complaint supersedes the original complaint.

"[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint." London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).
Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.LHK\CR.10\Atterbury274dwla.wpd

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants not named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 5. 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: 8/30/2010 LUCY H. KOH United States District Judge

Order of Dismissal with Leave to Amend P:\PRO-SE\SJ.LHK\CR.10\Atterbury274dwla.wpd

5