Williams v. Pelican Bay Medical Staff et al

Filing 17

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 9/29/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 9/29/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANTHONY SHARIF WILLIAMS,

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Plaintiff,
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v.
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PELICAN BAY MEDICAL STAFF, et al., )
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Defendants.
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No. C 10-1221 LHK (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint
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against prison officials at Pelican Bay State Prison, pursuant to 42 U.S.C. § 1983. For the
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reasons stated below, the Court dismisses the amended complaint with leave to amend.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).
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Order of Dismissal with Leave to Amend
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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff’s obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer “enough facts to state a claim for relief that is plausible on its face.” Id.

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at 1974.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Initially, the Court dismissed Plaintiff’s original complaint with leave to amend because

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Plaintiff failed to sufficiently allege a constitutional violation, and failed to identify individual

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Defendants, or explain how their specific actions caused him injury. Plaintiff filed an amended

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complaint, however, the amended complaint remains deficient. While Plaintiff names individual

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Defendants in his amended complaint, he does not provide factual allegations describing his

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“entitlement to relief.”

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To the extent Plaintiff is attempting to raise a claim of deliberate indifference to serious

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medical needs, Plaintiff is advised that it does violate the Eighth Amendment’s proscription

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against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976);

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of

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“deliberate indifference” involves an examination of two elements: the seriousness of the
Order of Dismissal with Leave to Amend
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prisoner’s medical need and the nature of the defendant’s response to that need. See McGuckin,

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974 F.2d at 1059. A “serious” medical need exists if the failure to treat a prisoner's condition

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could result in further significant injury or the “unnecessary and wanton infliction of pain.” Id.

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(citing Estelle, 429 U.S. at 104). A prison official is deliberately indifferent if he knows that a

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prisoner faces a substantial risk of serious harm and disregards that risk by failing to take

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reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In order for

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deliberate indifference to be established, therefore, there must be a purposeful act or failure to

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act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. A claim

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of medical malpractice or negligence is insufficient to make out a violation of the Eighth

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Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060-61 (9th Cir. 2004).

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Here, Plaintiff’s allegations do not raise a right to relief above the speculative level. See

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Twombly, 127 S. Ct. at 1964-65. Thus far, at most, Plaintiff’s claim is one of negligence.

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However, Plaintiff will be given one final opportunity to amend his amended complaint if he can

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do so in good faith. In his second amended complaint, Plaintiff must “set forth specific facts”

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regarding the seriousness of his injuries, and what Defendants did or did not do to violate his

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Eighth Amendment right to be free from cruel and unusual punishment. Leer v. Murphy, 844

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F.2d 628, 634 (9th Cir. 1988).

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To the extent Plaintiff raises claims alleging the improper denials of his adminstrative

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appeals, those claim are DISMISSED with prejudice. There is no constitutional right to a prison

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administrative appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003).

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To the extent Plaintiff raises claims regarding harassment or threats against him based on

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his sexual identity, allegations of verbal harassment and abuse fail to state a claim cognizable

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under 42 U.S.C. Section 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997).

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Similarly, allegations of mere threats also are not cognizable under Section 1983. See Gaut v.

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Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Accordingly, those claims are DISMISSED with

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prejudice.

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Order of Dismissal with Leave to Amend
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CONCLUSION

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The amended complaint is DISMISSED with leave to amend.

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Plaintiff shall file a SECOND AMENDED COMPLAINT within thirty days

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from the date this order is filed to cure the deficiencies described above. The second amended

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complaint must include the caption and civil case number used in this order (C 10-1221 LHK

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(PR)) and the words SECOND AMENDED COMPLAINT on the first page. Plaintiff may not

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incorporate material from the prior complaint by reference. Failure to file an amended

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complaint within thirty days, and in accordance with this order will result in dismissal of

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this action.

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Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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4.

It is the Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

9/29/11
LUCY H. KOH
United States District Judge

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Order of Dismissal with Leave to Amend
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