Morales v. California Correctional Health Care Services et al

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Nathanael Cousins on 1/4/2016. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 1/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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BENITO MORALES,
Plaintiff,

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v.

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No. C 15-3973 NC (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

CALIFORNIA CORRECTIONAL HEALTH
CARE SERVICES, et al.,

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Defendants.
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Plaintiff Benito Morales, a California state prisoner proceeding pro se, filed a civil

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rights action under 42 U.S.C. § 1983.1 Plaintiff is granted leave to proceed in forma pauperis

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in a separate order. For the reasons stated below, the complaint is dismissed with leave to

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amend.

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DISCUSSION
I.

Standard of Review

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A federal court must engage in a preliminary screening of any case in which a

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

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

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and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such relief.
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Plaintiff has consented to magistrate judge jurisdiction. (Docket No. 5.)

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28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of

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the 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).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . .

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a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action

United States District Court
For the Northern District of California

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will not do. . . . Factual allegations must be enough to raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible

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on its face.” Id. at 570.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

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a right secured by the Constitution or laws of the United States was violated and (2) that the

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violation was committed by a person acting under the color of state law. West v. Atkins, 487

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U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under § 1983 if the

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plaintiff can show that the defendant proximately caused the deprivation of a federally

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protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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II.

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Legal Claim
Plaintiff alleges that on December 27, 2014, plaintiff suffered from excruciating back

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pain and spasms. Plaintiff was unable to get out of bed, and his cellmate notified the nurse

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on staff. Defendant Nurse Kim Widger approached plaintiff’s cell and asked if plaintiff

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could come speak with her. Plaintiff responded that he was in pain and hadn’t been able to

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get up all morning. Defendant smiled and rolled her eyes, and did not believe that anything

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was wrong with plaintiff because she could see plaintiff’s legs moving, and plaintiff had

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received x-rays showing no irregularities. Plaintiff alleges that defendant’s response was

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deliberately indifferent to his serious medical needs because she was negligent and acted in
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an unprofessional manner.

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety of prisoners. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). To

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state an Eighth Amendment violation, two requirements are met: (1) the deprivation alleged

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is, objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately

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indifferent to inmate health or safety. Id. at 834. Neither negligence nor gross negligence

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will constitute deliberate indifference. See id. at 835-36 & n.4. A prison official cannot be

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held liable under the Eighth Amendment for denying an inmate humane conditions of

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confinement unless the standard for criminal recklessness is met, i.e., the official knows of

United States District Court
For the Northern District of California

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and disregards an excessive risk to inmate health or safety by failing to take reasonable steps

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to abate it. See id. at 837. The official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference. See id.

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Here, even liberally construed, plaintiff has not stated a claim that defendant was

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deliberately indifferent to his serious medical needs. From the allegations, no reasonable

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inference can be made that defendant was criminally reckless, or that she knew that she was

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subjecting plaintiff to an excessive risk to his health. “A difference of opinion between a

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prisoner-patient and prison medical authorities regarding treatment does not give rise to a

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§ 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). And, a claim of

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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); McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (mere negligence in diagnosing or treating a

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medical condition, without more, does not violate a prisoner’s Eighth Amendment rights),

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overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th

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Cir. 1997) (en banc).

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Although plaintiff names additional defendants, he does not link any of those

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defendants with any action or inaction demonstrating that any of them violated plaintiff’s

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rights. Liability may only be imposed on an individual defendant under 42 U.S.C. § 1983 if
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the plaintiff can show that the defendant’s actions both actually and proximately caused the

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deprivation of a federally protected right. See Lemire v. Cal. Dept. of Corrections &

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Rehabilitation, 726 F.3d 1062, 1085 (9th Cir. 2013).

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As the complaint currently reads, plaintiff has not stated a cognizable claim against

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any defendant. However, if plaintiff believes that he can cure the deficiencies addressed

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above, he may amend his complaint to do so.

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CONCLUSION
1.

The complaint is DISMISSED with leave to amend. If Plaintiff believes he can

cure the above-mentioned deficiencies in good faith, he must file an amended complaint

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United States District Court
For the Northern District of California

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within twenty-eight days from the date this order is filed. The amended complaint must

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include the caption and civil case number used in this order (C 15-3973 NC (PR)) and the

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words AMENDED COMPLAINT on the first page. Failure to file an amended complaint

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within twenty-eight days and in accordance with this order may result in the dismissal

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of this case. The Clerk of the Court is directed to send plaintiff a blank civil rights form

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along with his copy of this order.

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2.

Plaintiff is advised that an amended complaint supersedes the original

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complaint. “[A] plaintiff waives all causes of action alleged in the original complaint which

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are not alleged in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811,

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814 (9th Cir. 1981).

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3.

It is 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

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“Notice of Change of Address,” and must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: January 4, 2016
NATHANAEL M. COUSINS
United States Magistrate Judge

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