Craig v. V. Brim

Northern District of California, cand-4:2015-cv-03664

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 9/3/15. (CERTIFICATE OF SERVICE ATTACHED)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ROBERT FRED CRAIG, 7 Case No. 15-cv-03664-PJH Plaintiff, 8 v. ORDER OF DISMISSAL WITH LEAVE 9 TO AMEND RON DAVIS, et al., 10 Defendants. 11 12 Northern District of California United States District Court 13 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 14 1983. He has been granted leave to proceed in forma pauperis. 15 DISCUSSION 16 I. STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 21 may be granted, or seek monetary relief from a defendant who is immune from such 22 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 23 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 25 of the claim showing that the pleader is entitled to relief." "Specific facts are not 26 necessary; the statement need only '"give the defendant fair notice of what the. . . . claim 27 is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) 28 (citations omitted). Although in order to state a claim a complaint "does not need detailed 1 factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] 2 to relief' requires more than labels and conclusions, and a formulaic recitation of the 3 elements of a cause of action will not do. . . . Factual allegations must be enough to 4 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 6 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 7 Court has recently explained the "plausible on its face" standard of Twombly: "While legal 8 conclusions can provide the framework of a complaint, they must be supported by factual 9 allegations. When there are well-pleaded factual allegations, a court should assume their 10 veracity and then determine whether they plausibly give rise to an entitlement to relief." 11 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential Northern District of California United States District Court 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 II. LEGAL CLAIMS 17 Plaintiff states that he received inadequate medical care. 18 Deliberate indifference to serious medical needs violates the Eighth Amendment's 19 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 20 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 21 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 22 banc). A determination of "deliberate indifference" involves an examination of two 23 elements: the seriousness of the prisoner's medical need and the nature of the 24 defendant's response to that need. Id. at 1059. 25 A "serious" medical need exists if the failure to treat a prisoner's condition could 26 result in further significant injury or the "unnecessary and wanton infliction of pain." Id. 27 The existence of an injury that a reasonable doctor or patient would find important and 28 worthy of comment or treatment; the presence of a medical condition that significantly 2 1 affects an individual's daily activities; or the existence of chronic and substantial pain are 2 examples of indications that a prisoner has a "serious" need for medical treatment. Id. at 3 1059-60. 4 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 5 substantial risk of serious harm and disregards that risk by failing to take reasonable 6 steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must 7 not only "be aware of facts from which the inference could be drawn that a substantial 8 risk of serious harm exists," but he "must also draw the inference." Id. If a prison official 9 should have been aware of the risk, but was not, then the official has not violated the 10 Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 11 F.3d 1175, 1188 (9th Cir. 2002). "A difference of opinion between a prisoner-patient and 12 prison medical authorities regarding treatment does not give rise to a § 1983 claim." Northern District of California United States District Court 13 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 14 Plaintiff appears to be diabetic and on March 3, 2015, was supposed to receive 15 100 units of Lantus, a long acting insulin. Instead, he states that a nurse gave him 100 16 units of regular insulin, which would have killed a normal person, but because plaintiff is 17 440 pounds, the extra fat saved his life. Plaintiff was taken to Marin General Hospital for 18 treatment that same day. A medical progress report from the prison noted that he was 19 treated immediately and responded to the treatment without any serious adverse effects 20 other than hypoglycemic symptoms. Plaintiff names as defendants the nurse who gave 21 the shot, the chief medical officer of the prison, and the warden. He seeks money 22 damages. 23 To state an Eighth Amendment claim, plaintiff must show that the defendants 24 acted with deliberate indifference. If a prison official should have been aware of the risk, 25 but was not, then the official has not violated the Eighth Amendment, no matter how 26 severe the risk. Gibson, 290 F.3d at 1188. A claim of medical malpractice or negligence 27 is insufficient to make out a violation of the Eighth Amendment. See Toguchi v. Chung, 28 391 F.3d 1051, 1060-61 (9th Cir. 2004). 3 1 While this was a serious incident, based on plaintiff's allegations it appears that 2 the nurse made a mistake but plaintiff has not shown deliberate indifference. Plaintiff's 3 claim more resembles medical malpractice or negligence which should be brought in 4 state court. However, plaintiff will be provided one opportunity to amend to present a 5 cognizable Eighth Amendment claim. 6 CONCLUSION 7 1. The complaint is DISMISSED with leave to amend in accordance with the 8 standards set forth above. The amended complaint must be filed no later than October 9 12, 2015, and must include the caption and civil case number used in this order and the 10 words AMENDED COMPLAINT on the first page. Because an amended complaint 11 completely replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may 12 Northern District of California United States District Court not incorporate material from the original complaint by reference. 13 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 14 court informed of any change of address by filing a separate paper with the clerk headed 15 "Notice of Change of Address," and must comply with the court's orders in a timely 16 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 17 pursuant to Federal Rule of Civil Procedure 41(b). 18 IT IS SO ORDERED. 19 Dated: September 3, 2015 20 21 ________________________ 22 PHYLLIS J. HAMILTON 23 United States District Judge 24 \\CANDOAK\Data\Users\PJHALL\_psp\2015\2015_03664_Craig_v_Davis_(PSP)\15-cv-03664-PJH-_dwlta.docx 25 26 27 28 4 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 ROBERT FRED CRAIG, 5 Case No. 15-cv-03664-PJH Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 RON DAVIS, et al., 8 Defendants. 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 11 District Court, Northern District of California. 12 Northern District of California That on September 3, 2015, I SERVED a true and correct copy(ies) of the attached, by United States District Court 13 placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 15 receptacle located in the Clerk's office. 16 17 Robert Fred Craig ID: AS6563 San Quentin State Prison 18 San Quentin, CA 94974 19 20 Dated: September 3, 2015 21 22 Susan Y. Soong Clerk, United States District Court 23 24 25 By:________________________ Nichole Peric, Deputy Clerk to the 26 Honorable PHYLLIS J. HAMILTON 27 28 5