Harrison v. Santa Rita/Corizon Health Medical Staff

Filing 6

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 1/10/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 1/11/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 ) ) ) ) ) ) ) ) ) ) ) ) KHALID J. HARRISON, 11 Plaintiff, 12 vs. 13 14 SANTA RITA / CORIZON HEALTH MEDICAL STAFF, 15 Defendant. 16 17 No. C 12-5453 LHK (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND Plaintiff, currently incarcerated at the Santa Rita Jail and proceeding pro se, filed a civil 18 rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff’s motion to proceed in forma pauperis is 19 GRANTED in a separate order. For the reasons below, Plaintiff’s complaint is DISMISSED 20 with leave to amend. 21 22 23 DISCUSSION A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 24 seeks redress from a governmental entity or officer or employee of a governmental entity. See 25 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss 26 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 27 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 28 Order of Dismissal With Leave to Amend G:\PRO-SE\SJ.LHK\CR.12\Harrison453dwla.wpd 1 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. 2 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 3 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 4 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 5 the alleged deprivation was committed by a person acting under the color of state law. West v. 6 Atkins, 487 U.S. 42, 48 (1988). 7 B. Legal Claims 8 Plaintiff alleges that unnamed medical staff at the Santa Rita County Jail left gauze in a 9 wound on Plaintiff’s body. As a result, claims Plaintiff, he suffered on a daily basis. Although 10 Plaintiff was told that he would need surgery to remove the gauze, a few days after discovery of 11 the gauze, the gauze fell out on its own. It appears that Plaintiff is trying to state a claim of 12 deliberate indifference to his serious medical needs. 13 However, Plaintiff has not named any individual Defendant. Plaintiff must link an 14 individual Defendant to a claim by providing facts showing the basis for liability for each 15 Defendant. For example, Plaintiff should allege which Defendants were responsible for 16 violating his constitutional rights, and how he or she was responsible for doing so. Plaintiff 17 should not refer to them as a group (e.g., “the Defendants” or “medical staff”); rather, he should 18 identify each involved person by name, and link each of them to the claim(s) by explaining what 19 each Defendant did or failed to do that caused a violation of his constitutional rights. See Leer v. 20 Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on individual defendant 21 under § 1983 only if plaintiff can show that a defendant proximately caused deprivation of 22 federally protected right). To the extent Plaintiff is attempting to sue the Santa Rita County Jail, 23 he fails to allege that the Santa Rita County Jail violated his constitutional rights and 24 subsequently caused him harm pursuant to some policy or custom, as is required to state a claim 25 against local governments. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 26 675, 681 (9th Cir. 1984). 27 28 Moreover, Plaintiff is advised that “a plaintiff’s obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of Order of Dismissal With Leave to Amend G:\PRO-SE\SJ.LHK\CR.12\Harrison453dwla.wpd 2 1 the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a 2 right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553- 3 56 (2007) (citations omitted). 4 5 Thus, Plaintiff’s complaint is DISMISSED. However, Plaintiff will be given an opportunity to amend his complaint to cure these deficiencies if he can do so in good faith. 6 7 CONCLUSION 1. The complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall file 8 an AMENDED COMPLAINT within thirty days from the date this order is filed to cure the 9 deficiencies described above. The amended complaint must include the caption and civil case 10 number used in this order (C 12-5453 LHK (PR)) and the words AMENDED COMPLAINT on 11 the first page. Plaintiff may not incorporate material from the prior complaint by reference. 12 Failure to file an amended complaint within thirty days and in accordance with this order 13 will result in dismissal of this action. 14 2. Plaintiff is advised that an amended complaint supersedes the original complaint. 15 “[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged 16 in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). 17 Defendants not named in an amended complaint are no longer defendants. See Ferdik v. 18 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 19 3. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 20 and all parties informed of any change of address and must comply with the Court’s orders in a 21 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 22 pursuant to Federal Rule of Civil Procedure 41(b). 23 IT IS SO ORDERED. DATED: 1/10/13 24 LUCY H. KOH United States District Judge 25 26 27 28 Order of Dismissal With Leave to Amend G:\PRO-SE\SJ.LHK\CR.12\Harrison453dwla.wpd 3

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