United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
M. WHYTE UNITED STATES DISTRICT JUDGE
a California state pretrial detainee, proceeding pro se,
filed a civil rights complaint pursuant to 42 U.S.C. §
1983. Plaintiff has been granted leave to proceed in forma
pauperis in a separate order. For the reasons stated below,
the court dismisses the complaint with leave to amend.
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that 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. See id.
§ 1915A(b)(1), (2). Pro se pleadings must, however, be
liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
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).
complaint, plaintiff alleges that in February 2016, he had a
phone conversation with Nurse Herhinder Dhanoa regarding an
eye examination. Nurse Joy Kick then examined plaintiff's
eyes, and told him that his eyes were "really bad."
Plaintiff told both nurses that he was experiencing
headaches, migraines, felt fatigued, had pain in his eyes,
and was seeing black spots. Plaintiff alleges that both
nurses failed to provide pain relief medication and failed to
consult a physician. Three days later, Nurse Joy Kick told
plaintiff that she consulted with Dr. Dennis McBride, who
would not provide plaintiff with pain medication, and
informed plaintiff to buy Ibuprofen from the commissary. On
April 22, 2016, plaintiff sent a grievance to Health
Administrator Sam Rosales, but Sam Rosales did not take any
action. Plaintiff finally alleges that Contra Costa County
has an unofficial policy of not providing its inmates with
appears that plaintiff is attempting to raise the claim that
defendants were deliberately indifferent to his serious
medical needs. Deliberate indifference to serious medical
needs violates the Eighth Amendment's proscription
against cruel and unusual punishment. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976); McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),
overruled on other grounds, WMX Technologies,
Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en
banc). A determination of "deliberate indifference"
involves an examination of two elements: the seriousness of
the prisoner's medical need and the nature of the
defendant's response to that need. See McGuckin,
974 F.2d at 1059. As currently, pled, plaintiff has not set
forth facts sufficient to support a plausible claim that
defendants exhibited deliberate indifference to his serious
medical needs. A prison official is deliberately indifferent
if he knows that a prisoner faces a substantial risk of
serious harm and disregards that risk by failing to take
reasonable steps to abate it. Farmer v. Brennan, 511
U.S. 825, 837 (1994). The prison official must not only
"be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, "
but he "must also draw the inference." Id.
Here, there are no facts to show that any defendant was aware
that the failure to prescribe pain medication would create a
substantial risk of serious harm to plaintiff. Accordingly,
the complaint is dismissed with leave to amend if plaintiff
believes in good faith that he can state a cognizable claim.
addition, plaintiff is reminded that the Prison Litigation
Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321
(1996) ("PLRA"), amended 42 U.S.C. § 1997e to
provide that "[n]o action shall be brought with respect
to prison conditions under [42 U.S.C. § 1983], or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are exhausted."
42 U.S.C. § 1997e(a). An action must be dismissed unless
the prisoner exhausted his available administrative remedies
before he or she filed suit, even if the prisoner
fully exhausts while the suit is pending. McKinney v.
Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see
Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.
2006) (where administrative remedies are not exhausted before
the prisoner sends his complaint to the court it will be
dismissed even if exhaustion is completed by the time the
complaint is filed).
court notes that here, plaintiff submitted an informal
grievance on April 11, 2016, and then a first formal
grievance to Health Administrator Sam Rosales on April 22,
2016. Normally, an inmate must submit his first formal level
grievance to a deputy. It does not appear that plaintiff
should have submitted his grievance to Health Administrator
Sam Rosales for processing. Moreover, plaintiff submitted
this federal civil rights complaint a mere four days after he
submitted his first formal grievance before asserting in this
complaint that he received no response from Health
Administrator Sam Rosales. The court notes that inmates are
not required to specifically plead or prove proper exhaustion
in their complaints. See Jones v. Bock, 549 U.S.
199, 204, 215-17 (2007). The court also recognizes that the
Martinez Detention Facility has a grievance policy in place
that sets forth the grievance process. If plaintiff believes
that he has indeed properly exhausted all available remedies
as required by the PLRA, he may file an amended complaint to
correct the deficiencies listed in the previous paragraph.
foregoing reasons, the court hereby orders as follows:
complaint is DISMISSED with leave to amend. If plaintiff
believes he can cure the above-mentioned deficiencies in good
faith, he must file an amended complaint within twenty-eight
days from the date this order is filed. The amended complaint
must include the caption and civil case number used in this
order (C 16-2402 RMW (PR)) and the words AMENDED COMPLAINT on
the first page. Failure to file an ...