Hardaway v. Franco

Filing 9

ORDER of Dismissal With Leave to Amend. Signed by Judge Ronald M. Whyte on 3/27/13. (jg, COURT STAFF) (Filed on 3/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SONNY RAY HARDAWAY,

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Plaintiff,

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v.
Y. FRANCO,

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Defendant.

No. C 12-5885 RMW (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed a federal civil rights complaint pursuant
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to 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis in a separate
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order. For the reasons that follow, 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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Order of Dismissal with Leave to Amend
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Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

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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.

Plaintiff’s Claims

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Plaintiff sues prison official, Y. Franco. Plaintiff alleges that he was transported to the

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prison hospital for x-rays on his shoulder. Plaintiff was transported in waist chains. After the

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appointment, plaintiff was escorted back to the holding tank. Defendant Franco ordered plaintiff

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to place his hands behind his back so that Franco could handcuff him. Plaintiff told Franco that

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he had a shoulder injury and tried to show him the permanent chrono he had stating that he

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should only have waist chains. Franco handcuffed plaintiff anyway. Plaintiff remained

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handcuffed until everyone returned to the van and was transported back to the prison. Plaintiff

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alleges that the handcuffing unnecessarily aggravated plaintiff’s shoulder pain.

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The Constitution does not mandate comfortable prisons, but neither does it permit

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inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner

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receives in prison and the conditions under which he is confined are subject to scrutiny under the

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Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). A prison official

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violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged must

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be, objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson

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v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable

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state of mind, id. (citing Wilson, 501 U.S. at 297). In determining whether a deprivation of a

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basic necessity is sufficiently serious to satisfy the objective component of an Eighth

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Amendment claim, a court must consider the circumstances, nature, and duration of the

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deprivation. The more basic the need, the shorter the time it can be withheld. See Johnson v.

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Lewis, 217 F.3d 726, 731 (9th Cir. 2000). In its present state, plaintiff’s claim that Franco

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forcibly placed him in handcuffs during a medical transportation is not a sufficiently serious

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deprivation to trigger a constitutional violation. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9Order of Dismissal with Leave to Amend
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10 (1992) (Eighth Amendment excludes from constitutional recognition de minimis uses of

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force). To that end, plaintiff will be given leave to amend if he can allege in good faith that the

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deprivation he suffered was objectively and sufficiently serious.

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Plaintiff’s remaining claims of discrimination, fraud, harassment, intimidation,

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retaliation, and excessive force are conclusory, and thus, are also DISMISSED with leave to

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amend. Federal Rule of Civil Procedure 8(a)(2) requires “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, 551 U.S. 89, 93 (2007) (citations omitted). If plaintiff

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believes in good faith that he can state a claim for relief for these allegations in compliance with

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Rule 8(a), he may file an amended complaint within thirty days from the filing date of this order.

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At this time, plaintiff’s state law claims are DISMISSED without prejudice.

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CONCLUSION

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For the foregoing reasons, the court orders:

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1.

The complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall file

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an AMENDED COMPLAINT within thirty days from the date this order is filed to cure the

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deficiencies described above. The amended complaint must include the caption and civil case

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number used in this order (C 12-5885 RMW (PR)) and the words AMENDED COMPLAINT on

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the first page. Plaintiff may not incorporate material from the prior complaint by reference.

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Failure to file an amended complaint within thirty days and in accordance with this order

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will result in dismissal of this action.

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2.

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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3.

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

and all parties informed of any change of address and must comply with the court’s orders in a
Order of Dismissal with Leave to Amend
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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule 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
G:\PRO-SE\SJ.Rmw\CR.12\Hardaway885dwla.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SONNY RAY HARDAWAY,

Case Number: CV12-05885 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
Y. FRANCO et al,
Defendant.

/

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 March 27, 2013, 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.

Sonny Ray Hardaway P-45579
Kern Valley State Prison
PO Box 5102
134-101
Delano, CA 93216
Dated: March 27, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk