United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
EDWARD
J. DAVILA UNITED STATES DISTRICT JUDGE
Plaintiff,
a California state prisoner, filed the instant pro
se civil rights action pursuant to 42 U.S.C. § 1983
against medical officials at Martinez Detention Facility
(“MDF”). Plaintiff’s motion for leave to
proceed in forma pauperis will be addressed in a
separate order.
DISCUSSION
A.
Standard of Review
A
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). 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. See West v.
Atkins, 487 U.S. 42, 48 (1988).
B.
Plaintiff’s Claims
Plaintiff
claims that in September 2013 at MDF, he “signed up
for” an optometrist, which he never received. (Comp. at
3.) He claims that since the beginning of January 2016, he
started experiencing irritation with his eyes, as well as
pain, headaches, migraines, blood shot eyes and poor vision.
(Id.) When he informed Defendants Nurse Himmelvl and
Dr. Dennis McBride about these symptoms, they “flat out
denied prescribing me pain medications and told me to
purchase my own Ibuprofen from commissary.”
(Id.) When he filed a grievance in which he informed
Defendant Sam Rosales, the MDF Health Administrator, that the
medical staff was being “deliberately careless about
[his] medical health, ” Defendant Rosales told him to
contact “Triage.” (Id.) Plaintiff claims
that “Triage medical staff[]” are the “ones
acting careless” and being deliberately indifferent to
his medical needs. (Id.) Therefore, Plaintiff claims
that Defendant Rosales is also acting “careless”
by referring him to the same people of whom he was
complaining. (Id.) Plaintiff also claims that
Defendants Himmelvl and McBride experimented on him by
smearing ointments on his eyes, causing “severe
irritation, pains and blood shot, also lost of vision
[sic].” (Id.)
This
claim must be dismissed because Plaintiff’s allegation
that Defendants were “careless” and experimenting
on him amounts to nothing more than negligence and medical
malpractice which are not sufficient to state a violation of
the Eighth Amendment. See Toguchi v. Chung, 391 F.3d
1051, 1060-61 (9th Cir. 2004); Hallett v. Morgan,
296 F.3d 732, 744 (9th Cir. 2002); Franklin v.
Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); see,
e.g., McGuckin v. Smith, 974 F.2d 1050, 1059
(9th Cir. 1992), overruled on other grounds, (mere
negligence in diagnosing or treating a medical condition,
without more, does not violate a prisoner’s 8th
Amendment rights); Anthony v. Dowdle, 853 F.2d 741,
743 (9th Cir. 1988) (no more than negligence stated where
prison warden and work supervisor failed to provide prompt
and sufficient medical care). The complaint shall be
dismissed with leave to amend for Plaintiff to attempt to
state an Eighth Amendment claim as described below.
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); Jones v. Johnson, 781 F.2d
769, 771 (9th Cir. 1986). 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. A
“serious” medical need exists if the failure to
treat a prisoner’s condition could result in further
significant injury or the “unnecessary and wanton
infliction of pain.” Id. (citing
Estelle, 429 U.S. at 104). 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. In order for deliberate
indifference to be established, therefore, there must be a
purposeful act or failure to act on the part of the defendant
and resulting harm. See McGuckin, 974 F.2d at 1060;
Shapley v. Nevada Bd. of State Prison Comm’rs,
766 F.2d 404, 407 (9th Cir. 1985).
Plaintiff
also names Contra Costa County as Defendant, but makes no
specific factual allegations against this municipality.
(Compl. at 2.) Local governments are “persons”
subject to liability under 42 U.S.C. § 1983 where
official policy or custom causes a constitutional tort,
see Monell v. Dep't of Social Servs., 436 U.S.
658, 690 (1978); however, a city or county may not be held
vicariously liable for the unconstitutional acts of its
employees under the theory of respondeat superior, see
Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520
U.S. 397, 403 (1997); Monell, 436 U.S. at 691;
Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th
Cir. 1995). Accordingly, to the extent that Plaintiff is
attempting to hold Contra Costa County vicariously liable for
the alleged actions of its employees, Plaintiff fails to
state a claim. Plaintiff may attempt to state a claim against
the County as described below, if he can truthfully do so, in
the amended complaint.
To
impose municipal liability under § 1983 for a violation
of constitutional rights resulting from governmental inaction
or omission, a plaintiff must show: (1) that the plaintiff
possessed a constitutional right of which he or she was
deprived; (2) that the municipality had a policy; (3) that
this policy amounts to deliberate indifference to the
plaintiff's constitutional rights; and (4) that the
policy is the moving force behind the constitutional
violation. See Plumeau v. School Dist. #40 County of
Yamhill, 130 F.3d 432, 438 (9th Cir. 1997); Lowry v.
City of San Diego, 818 F.3d 840, 855 (9th Cir. 2016)
(specifying that the deliberate indifference analysis does
not apply to a municipal policy in conjunction with
affirmative governmental conduct). Local government does not
cause the alleged violation, and therefore is not liable
under § 1983, if it does not have the power to remedy
the alleged violation. See Estate of Brooks v. United
States, 197 F.3d 1245, 1248-49 (9th Cir. 1999)
(upholding dismissal of § 1983 excessive detention claim
against county because under state statute county did not
have power either to release federal detainee or bring him
before federal judge).
CONCLUSION
For the
reasons state above, the complaint is DISMISSED with
leave to amend. Within twenty-eight (28)
days of the date this order is filed, Plaintiff
shall file an amended complaint using the court’s form
complaint. The amended complaint must include the caption and
civil case number used in this order, i.e., Case No. C
16-02033 EJD (PR), and the words “AMENDED
COMPLAINT” on the first page. Plaintiff must answer all
the questions on the form in order for the action to proceed.
Plaintiff is reminded that the amended complaint supersedes
all prior complaints, and Plaintiff may not make references
to the original complaint. Claims not included in the amended
complaint are no longer claims and defendants not named in an
amended complaint are no longer defendants. See Ferdik v.
Bonzelet 963 F.2d 1258, 1262 (9th Cir.1992).
Failure
to respond in accordance with this order by filing an amended
complaint will result in the dismissal of this action without
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