United States District Court, N.D. California
ORDER OF SERVICE
THELTON E. HENDERSON United States District Judge.
a state prisoner, filed this pro se civil rights
action under 42 U.S.C. § 1983. The amended complaint was
dismissed with leave to amend and Plaintiff has filed a
second amended complaint.
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).
Pleadings filed by pro se litigants, however, must be
liberally construed. Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010); Balistreri v. Pacifica Police
Dep't., 901 F.2d 696, 699 (9th Cir. 1990).
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).
alleges that Defendants were deliberately indifferent to his
health and safety and he received inadequate medical care.
Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones. See Farmer v.
Brennan, 511 U.S. 825, 832 (1994). The treatment a
prisoner receives in prison and the conditions under which he
is confined are subject to scrutiny under the Eighth
Amendment. See Helling v. McKinney, 509 U.S. 25, 31
(1993). In its prohibition of "cruel and unusual
punishment, " the Eighth Amendment places restraints on
prison officials, who may not, for example, use excessive
force against prisoners. See Hudson v. McMillian,
503 U.S. 1, 6-7 (1992). The Amendment also imposes duties on
these officials, who must provide all prisoners with the
basic necessities of life such as food, clothing, shelter,
sanitation, medical care and personal safety. See
Farmer, 511 U.S. at 832; DeShaney v. Winnebago
County Dep't of Social Servs., 489 U.S. 189, 199-200
(1989); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th
prison official violates the Eighth Amendment when two
requirements are met: (1) the deprivation alleged must be,
objectively, sufficiently serious, Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v.
Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison
official possesses a sufficiently culpable state of mind,
id. (citing Wilson, 501 U.S. at 297).
indifference to serious medical needs violates the Eighth
Amendment's proscription against cruel and unusual
punishment. 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.
Id. at 1059.
"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. The existence of an
injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of
a medical condition that significantly affects an
individual's daily activities; or the existence of
chronic and substantial pain are examples of indications that
a prisoner has a "serious" need for medical
treatment. Id. at 1059-60.
prison official is deliberately indifferent if he or she
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. If a
prison official should have been aware of the risk, but was
not, then the official has not violated the Eighth Amendment,
no matter how severe the risk. Gibson v. County of
Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A
difference of opinion between a prisoner-patient and prison
medical authorities regarding treatment does not give rise to
a § 1983 claim.” Franklin v. Oregon, 662
F.2d 1337, 1344 (9th Cir. 1981).
prior complaints the Court found that Plaintiff had presented
sufficient allegations that correctional officers Griewank
and Lower-Brodersen were deliberately indifferent to his
health and safety by not providing him with a cane and then
having him walk down a steep ramp where he fell and was
Washington and Muniz who were named as supervisors
are dismissed from this action. “In a § 1983 or a
Bivens action - where masters do not answer for the
torts of their servants - the term ‘supervisory
liability' is a misnomer. Absent vicarious liability,
each Government official, his or her title notwithstanding,
is only liable for his or her own misconduct.”
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (finding
under Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Rule 8 of the Federal Rules of Civil Procedure,
that complainant-detainee in a Bivens action failed
to plead sufficient facts “plausibly showing”
that top federal officials “purposely adopted a ...