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United States District Court, N.D. California

January 26, 2004.


The opinion of the court was delivered by: VAUGHN WALKER, District Judge


Plaintiff, a prisoner at the San Francisco County Jail, has filed a pro se civil rights complaint for damages under 42 U.S.C. § 1983 alleging that, while being escorted to his cell, he "slip[ped] on the wet floor and landed on [his] back and head." Plaintiff also alleges that it took the Sheriffs Department "5 hours" to get "San Francisco General Hospital" to "come see [him]."

Plaintiff seeks to proceed in forma pauperis under 28 U.S.C. § 1915.


 A. Standard of Review

  Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir 1990). Page 2

  To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v Atkins, 487 U.S. 42, 48 (1988).

 B. Legal Claims

  It is well-established that neither negligence nor gross negligence is actionable under § 1983 in the prison context. See Farmer v Brennan, 511 U.S. 825, 835-36 & n4 (1994); Wood v Housewright, 900 F.2d 1332, 1334 (9th Cir 1990) (gross negligence insufficient to state claim for denial of medical needs to prisoner). The applicable standard is one of deliberate indifference to inmate health or safety under the Eighth Amendment, see Farmer, 511 US at 834; Wilson v. Seiter, 501 U.S. 294, 302 (1991), or, in the case of allegations of excessive force, the prisoner must show that officials applied force "maliciously and sadistically for the very purpose of causing harm," Hudson v. McMillian, 503 U.S. 1, 6 (1992). Even pretrial detainees, who are protected by the Due Process Clause and not the Cruel and Unusual Punishments Clause, must show deliberate indifference or reckless indifference, i.e., conduct so reckless or wanton as to be tantamount to a desire to inflict harm and that therefore is equivalent to a deliberate choice. See Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir 1991) (en banc). Negligence is not actionable under § 1983 even outside of the prison context. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998).

  Plaintiff's allegations regarding his "slip and fall" are DISMISSED because they amount to no more than negligence not actionable under § 1983. So are his allegations of minor delay in seeing "San Francisco General Hospital" officials. At most, they amount to negligence or medical malpractice not cognizable under § 1983. See, e.g., Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir Page 3 1998) (finding no merit in claims stemming from alleged delays in administering pain medication, treating broken nose and providing replacement crutch, because claims did not amount to more than negligence); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (finding that isolated occurrences of neglect may constitute grounds for medical malpractice but do not rise to level of unnecessary and wanton infliction of pain).


  For the foregoing reasons, plaintiffs request to proceed in forma pauperis (doc # 2) is DENIED and the complaint is DISMISSED.

  The Clerk shall close the file and terminate all pending motions as moot. No fee is due.



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