Botelho v. City of San Leandro et al

Filing 5

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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ALFREDO BOTELHO,

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Plaintiff,

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v.
CITY OF SAN LEANDRO, et al.,

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Defendants.

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No. C 11-4311 LHK (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint against San
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Leandro police officers, pursuant to 42 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in
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forma pauperis is GRANTED in a separate order. For the reasons stated below, the Court
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dismisses the 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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Order of Dismissal with Leave to Amend
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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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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
In the complaint, Plaintiff alleges that Officers Brum and Ballard arrived at the scene of a

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car accident, in which Plaintiff and Officer Sellers were involved. Plaintiff was arrested, but

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these officers denied Plaintiff any medical treatment, while Officer Sellers received medical

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treatment right away.

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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. See 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 grounds,

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

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determination of “deliberate indifference” involves an examination of two elements: the

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seriousness of the prisoner’s medical need and the nature of the defendant’s response to that

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need. See McGuckin, 974 F.2d at 1059. A “serious” medical need exists if the failure to treat a
Order of Dismissal with Leave to Amend
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prisoner's condition could result in further significant injury or the “unnecessary and wanton

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infliction of pain.” Id. (citing Estelle, 429 U.S. at 104). A prison official is deliberately

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indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that

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risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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In order for deliberate indifference to be established, therefore, there must be a purposeful act or

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

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A claim 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 an opportunity to amend his complaint if he can do so in good

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faith. In his amended complaint, Plaintiff must “set forth specific facts” regarding the

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

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Amendment right to be free from cruel and unusual punishment. Leer v. Murphy, 844 F.2d 628,

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634 (9th Cir. 1988).

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CONCLUSION

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1.

The complaint is DISMISSED with leave to amend.

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2.

Plaintiff shall file an AMENDED COMPLAINT within thirty days from the date

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this order is filed to cure the deficiencies described above. The amended complaint must include

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the caption and civil case number used in this order (C 11-4311 LHK (PR)) and the words

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AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from the

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prior complaint by reference. Failure to file an amended complaint within thirty days and in

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accordance with this order will result in dismissal of this action.

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3.

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).
Order of Dismissal with Leave to Amend
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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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