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Jenkins v. Brock

United States District Court, Ninth Circuit

July 2, 2013

LARRY H. JENKINS, Plaintiff,
v.
DR. BROCK; DR. CHASE; DR. SIRKIN; SGT. SMITH; MOON; SOTO; SGT. WARREN; Lt. L. PENNISI, JR.; R. GROUNDS; L. V. N. MCELROY, Defendants

ORDER OF SERVICE

WILLIAM ALSUP, District Judge.

INTRODUCTION

Plaintiff, a pro se prisoner, filed this civil rights case under 42 U.S.C. 1983 alleging that officials at Salinas Valley State Prison ignored plaintiff's suicidal condition and used excessive force against him. Plaintiff was given leave to file an amended complaint, which he has done. For the reasons discussed below, the amended complaint is ordered served upon certain defendants and dismissed as to other defendants.

ANALYSIS

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). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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 deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

B. LEGAL CLAIMS

Plaintiff alleges that he told defendants Dr. Brock, Dr. Sirkin, and Dr. Chase that he was feeling suicidal, but they ignored his complaints because he is African-American. He alleges that he also told defendant Sergeant Smith that if he returned to his cell he would commit suicide, but Smith informed him that if he did not return to his cell he would be forcibly returned. After he was returned to his cell, he tried to kill himself. He alleges that on a prior occasion while in a holding cage in the prison's medical annex, he informed defendant Nurse McElroy that he was suicidal, but these statements were ignored, he was subject to racial slurs, and he was left in the cage with articles of clothing that he used to hang himself. He alleges that defendants Sergeant Warren and Correctional Officers Moon and Soto beat him after they found him hanging. When liberally construed, these allegations state cognizable claims against these defendants for deliberate indifference to his serious medical needs and the use of excessive force in violation of the Eighth Amendment.

Plaintiff makes no allegations against defendants Pennisi or Grounds. Plaintiff was instructed when granted leave to amend that he was required to allege how each and every defendant violated his constitutional rights, and that his failure to do so would result in the dismissal of his claims against them. Consequently, the complaint will be dismissed as to defendants Grounds and Pennisi.

CONCLUSION

For the reasons set out above, it is hereby ordered as follows:

1. The claims against defendants R. Grounds and Lt. L. Pennisi, Jr., are DISMISSED.

2. The clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the amended complaint (dkt. 10) with all attachments thereto, and a copy of this order upon defendants: Dr. Brock; Dr. Chase; Dr. Sirkin; Sgt. Smith; Correctional Officer Moon; Correctional Officer Soto; Sgt. Warren; and Nurse McElroy, at Salinas Valley State Prison. A courtesy copy of the amended ...


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