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)

Download PDF
1 2 3 FILED 4 5 FEB 09 2016 6 SUSAN Y. SOONG CLERK U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 Plaintiff, a California state prisoner proceeding prose, filed this civil rights action under 17 42 U.S.C. § 1983. Plaintiff is granted leave to proceed informapauperis in a separate order. 18 For the reasons stated below, the court dismisses the complaint with leave to amend. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner 22 seeks redress from a governmental entity or officer or employee of a governmental entity. See 23 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss 24 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or 25 seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 26 § 1915A(b)(l), (2). Prose pleadings must, however, be liberally construed. See Balistreri v. 27 Pacifica Police Dep't., 901 F.2d 696,699 (9th Cir. 1988). 28 Order of Dismissal with Leave to Amend P:\PRO-SE\LHK\CR.l5\Ha11778dwla.wpd To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 2 (1) that a right secured by the Constitution or laws ofthe United States was violated, and (2) that 3 the alleged violation was committed by a person acting under the color of state law. See West v. 4 Atkins, 487 U.S. 42, 48 (1988). 5 B. Legal Claims 6 Plaintiff alleges that, on December 24, 2014, he requested a medical appointment with a 7 doctor because plaintiff suspected he had pneumonia. Plaintiff was evaluated by an unspecified 8 staff member at the Triage and Treatment Area ("TTA"), and was told that nothing was wrong. 9 Plaintiffwas sent back to his housing unit. Plaintiff felt chest pains, and was sent back to the 10 ITA. Again, an unspecified person at TTA told plaintiff nothing was wrong with him. Plaintiff 11 returned to his housing unit. On January 3, 2015, plaintiff passed out and became unconscious. 12 Plaintiffwas transported via wheelchair back to the TTA. Someone measured plaintiffs 13 temperature at 103.4 degrees. According to the exhibits attached to plaintiffs complaint, on 14 January 5, 2015, plaintiffwas placed into administrative segregation for an unspecified reason. 15 That same day, plaintiffwas having chest pains, and someone at the ITA prescribed antibiotics 16 to plaintiff. On January 6, 2015, plaintiff received chest x-rays, and it was determined that 17 plaintiff had pneumonia. Plaintiff asked to be taken to the hospital, but his request was denied. 18 Plaintiffwas given antibiotics, which lasted until January 9, 2015. 19 Plaintiff claims that Dr. Grant refused to place plaintiff in the hospital, that Dr. Grant 20 never visited plaintiff while plaintiff was in administrative segregation, and that Dr. Grant never 21 provided any IV fluids to plaintiff until plaintiff demanded receiving them. 22 It appears that plaintiff is attempting to raise a claim of deliberate indifference against Dr. 23 Grant. Deliberate indifference to serious medical needs violates the Eighth Amendment's 24 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 25 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 26 WMXTechnologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en bane). A 27 determination of"deliberate indifference" involves an examination of two elements: the 28 seriousness of the prisoner's medical need and the nature of the defendant's response to that Order of Dismissal with Leave to Amend P:\PRO-SE\LHK\CR.l5\Hall778dwla.wpd 2 need. See McGuckin, 974 F.2d at 1059. A prison official is deliberately indifferent if he knows 2 that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 3 reasonable steps to abate it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison 4 official must not only "be aware of facts from which the inference could be drawn that a 5 substantial risk of serious harm exists," but he "must also draw the inference." !d. If a prison 6 official should have been aware of the risk, but was not, then the official has not violated the 7 Eighth Amendment, no matter how severe the risk. See Gibson v. County of Washoe, 290 F.3d 8 1175, 1188 (9th Cir. 2002). 9 Here, liberally construed, plaintiff has not sufficiently alleged that Dr. Grant knew that 10 plaintiff faced a substantial risk of serious harm, and failed to take reasonable steps to abate it. 11 There is no reasonable inference from the facts presented that Dr. Grant's purposeful act or 12 failure to act caused any resulting harm. It is well-established that "[a] difference of opinion 13 between a prisoner-patient and prison medical authorities regarding treatment does not give rise 14 to a§ 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In sum, there are 15 simply no facts to support plaintiffs claim that Dr. Grant demonstrated a deliberate indifference 16 to plaintiffs serious medical needs. 17 If plaintiff can do so in good faith, plaintiff may amend his complaint to allege that Dr. 18 Grant was deliberately indifferent to his serious medical needs. Specifically, plaintiff must 19 allege facts showing that Dr. Grant's actions both actually and proximately caused the 20 deprivation of a federally protected right. See Lemire v. Cal. Dept. of Corrections & 21 Rehabilitation, 726 F .3d 1062, 1085 (9th Cir. 20 13). Plaintiff must state facts sufficient to lead 22 to a reasonable inference that Dr. Grant knew plaintiff faced a serious risk of substantial harm, 23 and failed to take reasonable steps to abate this harm. Even at the pleading stage, "[a] plaintiff 24 must allege facts, not simply conclusions, that show that an individual was personally involved 25 in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 26 1998). "Factual allegations must be enough to raise a right to relief above the speculative level." 27 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). 28 Order of Dismissal with Leave to Amend P:\PRO-SE\LHK\CR.l5\Hall778dw Ia. wpd 3 CONCLUSION 2 For the foregoing reasons, the court hereby orders as follows: 3 1. Plaintiffs complaint is DISMISSED with leave to amend. 4 2. If plaintiff can cure the pleading deficiencies described above, he shall file an 5 AMENDED COMPLAINT within thirty days from the date this order is filed. The amended 6 complaint must include the caption and civil case number used in this order (C 15-4778 LHK 7 (PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must 8 indicate which specific, named defendant(s) was involved in each cause of action, what each 9 defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated. 10 Plaintiff may not incorporate material from the prior complaint by reference. If plaintiff files an 11 amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that 12 demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file an 13 amended complaint within thirty days and in accordance with this order will result in a 14 finding that further leave to amend would be futile, and this action will be dismissed. 15 Plaintiff is advised that an amended complaint supersedes the original complaint. 3. 16 "[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged 17 in the amended complaint." London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). 18 Defendants not named in an amended complaint are no longer defendants. See Ferdik v. 19 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 20 It is the plaintiffs responsibility to prosecute this case. Plaintiff must keep the 4. 21 court informed of any change of address by filing a separate paper with the Clerk headed "Notice 22 of Change of Address," and must comply with the court's orders in a timely fashion. Failure to 23 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule 24 of Civil Procedure 41 (b). 25 26 IT IS SO ORDERED. DATED: 2-/ l )Zl> l b I { LUC~u.rJ United States District Judge 27 28 Order of Dismissal with Leave to Amend P:\PRO-SE\LHK\CR.I5\Hall778dwla.wpd 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?