Hall v. Grant

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Hon. Lucy H. Koh on 2/8/2016. (sms, COURT STAFF) (Filed on 2/9/2016)

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FILED

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FEB 09 2016

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SUSAN Y. SOONG
CLERK U.S. DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff, a California state prisoner proceeding prose, filed this civil rights action under
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42 U.S.C. § 1983. Plaintiff is granted leave to proceed informapauperis in a separate order.
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For 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 28 U.S.C.
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§ 1915A(b)(l), (2). Prose pleadings must, however, be liberally construed. See Balistreri v.

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Pacifica Police 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 ofthe United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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

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B.

Legal Claims

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Plaintiff alleges that, on December 24, 2014, he requested a medical appointment with a

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doctor because plaintiff suspected he had pneumonia. Plaintiff was evaluated by an unspecified

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staff member at the Triage and Treatment Area ("TTA"), and was told that nothing was wrong.

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Plaintiffwas sent back to his housing unit. Plaintiff felt chest pains, and was sent back to the

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ITA. Again, an unspecified person at TTA told plaintiff nothing was wrong with him. Plaintiff

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returned to his housing unit. On January 3, 2015, plaintiff passed out and became unconscious.

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Plaintiffwas transported via wheelchair back to the TTA. Someone measured plaintiffs

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temperature at 103.4 degrees. According to the exhibits attached to plaintiffs complaint, on

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January 5, 2015, plaintiffwas placed into administrative segregation for an unspecified reason.

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That same day, plaintiffwas having chest pains, and someone at the ITA prescribed antibiotics

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to plaintiff. On January 6, 2015, plaintiff received chest x-rays, and it was determined that

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plaintiff had pneumonia. Plaintiff asked to be taken to the hospital, but his request was denied.

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Plaintiffwas given antibiotics, which lasted until January 9, 2015.

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Plaintiff claims that Dr. Grant refused to place plaintiff in the hospital, that Dr. Grant

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never visited plaintiff while plaintiff was in administrative segregation, and that Dr. Grant never

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provided any IV fluids to plaintiff until plaintiff demanded receiving them.

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It appears that plaintiff is attempting to raise a claim of deliberate indifference against Dr.

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Grant. 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, 104

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

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WMXTechnologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en bane). A

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determination of"deliberate indifference" involves an examination of two elements: the

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seriousness of the prisoner's medical need and the nature of the defendant's response to that
Order of Dismissal with Leave to Amend
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need. See McGuckin, 974 F.2d at 1059. A prison official is deliberately indifferent if he knows
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that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take

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reasonable steps to abate it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison

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official must not only "be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists," but he "must also draw the inference." !d. If a prison

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official should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk. See Gibson v. County of Washoe, 290 F.3d

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1175, 1188 (9th Cir. 2002).

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Here, liberally construed, plaintiff has not sufficiently alleged that Dr. Grant knew that

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plaintiff faced a substantial risk of serious harm, and failed to take reasonable steps to abate it.

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There is no reasonable inference from the facts presented that Dr. Grant's purposeful act or

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failure to act caused any resulting harm. It is well-established that "[a] difference of opinion

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

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to a§ 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In sum, there are

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simply no facts to support plaintiffs claim that Dr. Grant demonstrated a deliberate indifference

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to plaintiffs serious medical needs.

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If plaintiff can do so in good faith, plaintiff may amend his complaint to allege that Dr.

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Grant was deliberately indifferent to his serious medical needs. Specifically, plaintiff must

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allege facts showing that Dr. Grant'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. 20 13). Plaintiff must state facts sufficient to lead

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to a reasonable inference that Dr. Grant knew plaintiff faced a serious risk of substantial harm,

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and failed to take reasonable steps to abate this harm. Even at the pleading stage, "[a] plaintiff

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must allege facts, not simply conclusions, that show that an individual was personally involved

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in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998). "Factual allegations must be enough to raise a right to relief above the speculative level."

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted).

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Order of Dismissal with Leave to Amend
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CONCLUSION
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For the foregoing reasons, the court hereby orders as follows:

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1.

Plaintiffs complaint is DISMISSED with leave to amend.

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2.

If plaintiff can cure the pleading deficiencies 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 15-4778 LHK

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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

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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 be dismissed.

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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 plaintiffs 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:

2-/ l )Zl> l b
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LUC~u.rJ
United States District Judge

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Order of Dismissal with Leave to Amend
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