Jerry Smith v. Denise Reyes et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. The complaint is DISMISSED with leave to amend. Within twenty-eight (28) days of the date this order is filed, Plaintiff shall file an amended complaint using the court's form complaint. The amended com plaint must include the caption and civil case number used in this order and the words "AMENDED COMPLAINT" on the first page and write in the case number for this action, Case No. C 14-02897 EJD (PR). Plaintiff must answer all the questions on the form in order for the action to proceed. Failure to respond in accordance with this order by filing an amended complaint will result in the dismissal of this action without prejudice and without further notice to Plaintiff. The Clerk shall include two copies of the court's complaint with a copy of this order to Plaintiff. Signed by Judge Edward J. Davila on 8/5/2014. (Attachments: # 1 FORM HABEAS COMPLAINT)(ecg, COURT STAFF) (Filed on 8/5/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JERRY SMITH,
Plaintiff,

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v.

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DENISE REYES, et. al.,
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Defendants.
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No. C 14-02897 EJD (PR)

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

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Plaintiff, a state prisoner at San Quentin State Prison, filed the instant civil rights

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action in pro se pursuant to 42 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in

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forma pauperis will be granted in a separate written order.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is
Dismissal with leave to amend
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immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be

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liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims

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Plaintiff claims that during December 2013, Defendants Dr. Reyes, Nurse

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DelaCruz, and Dr. E. Tootell “neglected” his medical needs with respect to a pain his toe

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and inability to sleep at night. (Compl. at 3.) This claim must be dismissed because a

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claim of medical malpractice or negligence is simply not sufficient to state a violation of

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

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Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Franklin v. Oregon, 662 F.2d

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1337, 1344 (9th Cir. 1981); see, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992), overruled on other grounds, (mere negligence in diagnosing or treating a medical

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condition, without more, does not violate a prisoner’s 8th Amendment rights); Anthony v.

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Dowdle, 853 F.2d 741, 743 (9th Cir. 1988) (no more than negligence stated where prison

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warden and work supervisor failed to provide prompt and sufficient medical care). The

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complaint shall be dismissed with leave to amend for Plaintiff to attempt to state an

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Eighth Amendment claim as described below.

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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,

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104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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

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banc); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of

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

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prisoner’s medical need and the nature of the defendant’s response to that need. See
Dismissal with leave to amend
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McGuckin, 974 F.2d at 1059. A “serious” medical need exists if the failure to treat a

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prisoner’s condition could result in further significant injury or the “unnecessary and

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

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

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and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan,

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511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists,” but he

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“must also draw the inference.” Id. In order for deliberate indifference to be established,

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therefore, there must be a purposeful act or failure to act on the part of the defendant and

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resulting harm. See McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison

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Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. The complaint is DISMISSED with leave to amend. Within twenty-eight (28)

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days of the date this order is filed, Plaintiff shall file an amended complaint using the

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court’s form complaint. The amended complaint must include the caption and civil case

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number used in this order and the words “AMENDED COMPLAINT” on the first page

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and write in the case number for this action, Case No. C 14-02897 EJD (PR). Plaintiff

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must answer all the questions on the form in order for the action to proceed.

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Failure to respond in accordance with this order by filing an amended

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complaint will result in the dismissal of this action without prejudice and without

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further notice to Plaintiff.

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The Clerk shall include two copies of the court’s complaint with a copy of this
order to Plaintiff.

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DATED:

8/5/2014

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Dismissal with leave to amend
P:\PRO-SE\EJD\CR.14\02897Smith_dwlta.wpd

EDWARD J. DAVILA
United States District Judge
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JERRY SMITH,

Case Number: CV14-02897 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
DENISE REYES, et al.,
Defendants.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
8/5/2014
That on
, 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.

Jerry Smith H44485
San Quentin State Prison
San Quentin, CA 94974
Dated:

8/5/2014
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk