Sterni v. Napa State Hospital et al

Filing 8

ORDER of Dismissal With Leave to Amend. Signed by Judge Ronald M. Whyte on 12/19/12. (jg, COURT STAFF) (Filed on 12/19/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL ALLEN STERNI,

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Plaintiff,

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v.
NAPA STATE HOSPITAL DOES, et al.,

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Defendants.

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No. C 12-5145 RMW (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a separate order. For
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the reasons stated below, the court 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 id. § 1915A(b)(1),
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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police
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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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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 deprivation was committed by a person acting under the color of state law. West v.

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

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B.

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Plaintiff’s Claims
In his complaint, plaintiff alleges that “Doe” defendant refused to allow plaintiff to see

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“1370” and “forced medication” court orders, and refused to give plaintiff copies of those orders

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or allow him to report these refusals to the “proper authorities.” (Compl. at 3.) Plaintiff has

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failed to allege that a right secured by the Constitution or the laws of the United States was

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violated. Accordingly, this claim is DISMISSED for failure to state a claim.

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Plaintiff also alleges that on March 7, 2012, Dr. Jacques and Dr. Spivie forced plaintiff to

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take medication to restore his competency, which resulted in plaintiff being placed in five-point

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restraints and a week in walking restraints. Plaintiff claims that Dr. Jacques and other “Doe”

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defendants ordered high amounts of medication as a form of punishment. While there is a liberty

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interest in freedom from unwanted antipsychotic drugs, Washington v. Harper, 494 U.S. 210,

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221-22 (1990), it is unclear whether plaintiff is complaining of the forced medication, or the

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resulting restraints, or the amount of medication. To that end, this claim is DISMISSED, and

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plaintiff will be given leave to amend to clarify this claim.

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Plaintiff further claims that Dr. Sekhon refused to assist him in receiving double portion

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meals because he was underweight when he arrived at Napa State Hospital. Instead, alleges

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plaintiff, Dr. Sekhorn referred plaintiff to the dietician, who would send plaintiff back to Dr.

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Sekhon. The Eighth Amendment requires only that prisoners receive food that is adequate to

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maintain health. See Graves v. Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (per curiam).

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Plaintiff implies that he lost weight while at San Joaquin County Jail, but does not assert that he

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received inadequate food to maintain health, much less that Dr. Sekhon or the dietician caused

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any such deprivation. Plaintiff has failed to allege that a right secured by the Constitution or the

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laws of the United States was violated. Thus, this claim is DISMISSED for failure to state a

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claim.
Order of Dismissal with Leave to Amend
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Plaintiff also claims that the Unit Supervisor, Mr. Lapage, forced plaintiff to submit to a

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blood draw against plaintiff’s beliefs. Non-consensual extraction of blood implicates the Fourth

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Amendment’s protection against unreasonable searches and seizures. See Skinner v. Railway

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Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989). Liberally construed, plaintiff states a

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cognizable claim of a violation of his Fourth Amendment right.

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Finally, plaintiff alleges that “Napa State Hospital police” would not verify the court

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orders that forced plaintiff to take medication. Plaintiff has failed to allege that a right secured

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by the Constitution or the laws of the United States was violated. Accordingly, this claim is

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DISMISSED for failure to state a claim.

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Plaintiff also lists “Doe” defendants. Although the use of “John Doe” to identify a

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defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980), situations may arise where the identity of alleged defendants cannot be known prior

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to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity

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through discovery to identify the unknown defendants, unless it is clear that discovery would not

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uncover their identities or that the complaint should be dismissed on other grounds. See id.

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Should plaintiff discover the identities of the Doe defendants, he may move to amend his

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complaint to include them in this action at a later date.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

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Claims 1, 3, and 5 are DISMISSED for failure to state a claim. Claim 2 is

DISMISSED with leave to amend. Doe defendants are DISMISSED.
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If plaintiff can cure the pleading deficiency described above, he shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 12-5145 RMW

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(PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must

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indicate which specific, named defendant(s) was involved in each cause of action, what each

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defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated.

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Plaintiff may not incorporate material from the prior complaint by reference. If plaintiff files an
Order of Dismissal with Leave to Amend
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amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that

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demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file an

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amended complaint within thirty days and in accordance with this order will result in a

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finding that further leave to amend would be futile and this action will proceed solely on

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the cognizable claim found above.

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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).
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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:
RONALD M. WHYTE
United States District Judge

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Order of Dismissal with Leave to Amend
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ALLEN STERNI,

Case Number: CV12-05145 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
NAPA STATE HOSPITAL et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 19, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Michael Allen Sterni AL-7692
California Correctional Institution
Facility -D/ Dorm-5/Bunk #46U
Post Office Box 608
Tehachapi, CA 93581
Dated: December 19, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk