1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ELIJAH COOPER, Case No. 5:23-cv-03969 EJD (PR)
7 Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND 8 v.
9 CITY AND COUNTY OF SAN FRANCISCO, et al., 10 Defendants. 11 12 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 13 1983 against the City and County of San Francisco and Sheriff Deputy Khorge. Dkt. No. 6 at 2. 14 Then over a month later, Plaintiff then filed a document which was construed as an amended 15 complaint. Dkt. No. 10. Plaintiff’s motion for leave to proceed in forma pauperis was granted. 16 Dkt. No. 11. This matter was reassigned to the undersigned on December 22, 2023. Dkt. No. 15. 17 18 DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. See 28 22 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 23 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 24 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro 25 se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 26 F.2d 696, 699 (9th Cir. 1988). 27 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 1 alleged violation was committed by a person acting under the color of state law. See West v. 2 Atkins, 487 U.S. 42, 48 (1988). 3 B. Plaintiff’s Claims 4 Plaintiff claims that on June 30, 2023, he was ordered by a “San Francisco Sheriff deputy” 5 to carry a “portable” telephone upstairs. Dkt. No. 6 at 2. Plaintiff fell, causing the telephone to 6 land on himself. Id. at 3. Plaintiff claims that Deputy Khorge did not call for medical assistance. 7 Id. Plaintiff claims that his leg was injured during the incident, and that he has “pain in my body 8 with blood come out” when he uses the bathroom. Plaintiff alleges the telephone weighed 200 9 pounds. Id. Plaintiff seeks damages. Id. In the subsequent filing, Plaintiff provides a copy of his 10 grievance and a “health authorization.” Dkt. No. 10-1 at 1-3. Accordingly, the document which 11 was docketed as an “amended complaint” was not intended to supersede the original but rather to 12 provide supplemental material. 13 Prisoners have a right under the Eighth Amendment to be free from exposure to unsafe 14 conditions and from deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 15 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The failure of prison officials 16 to protect inmates from dangerous conditions at the prison violates the Eighth Amendment when 17 two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) 18 the prison official is, subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 19 U.S. at 834. A prison official is deliberately indifferent if he knows of and disregards an excessive 20 risk to inmate health or safety by failing to take reasonable steps to abate it. Id. at 837. 21 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 22 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 23 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part 24 on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 25 banc); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of “deliberate 26 indifference” involves an examination of two elements: the seriousness of the prisoner’s medical 27 need and the nature of the defendant’s response to that need. See McGuckin, 974 F.2d at 1059. A 1 significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d at 2 1059 (citing Estelle, 429 U.S. at 104). 3 A prison official is deliberately indifferent if he knows that a prisoner faces a substantial 4 risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer, 5 511 U.S. at 837. The prison official must not only “be aware of facts from which the inference 6 could be drawn that a substantial risk of serious harm exists,” but he “must also draw the 7 inference.” Id. If a prison official should have been aware of the risk, but was not, then the 8 official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County 9 of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 10 The allegations in the complaint are insufficient to proceed with any Eighth Amendment 11 claim. First of all, Plaintiff’s allegation that he was ordered to carry a 200-pound portable 12 telephone upstairs, liberally construed, implicates Plaintiff’s Eighth Amendment right to be 13 protected from unsafe conditions. Ordering an inmate to carry a 200-pound item upstairs by 14 himself is objectively an unsafe condition. However, the allegations are insufficient to proceed on 15 this claim because Plaintiff fails to name the individual who exposed him to this unsafe condition, 16 having only identified him as a “San Francisco Sheriff deputy”. See supra at 2. Secondly, 17 Plaintiff must allege sufficient facts to satisfy the second subjective element, i.e., that this 18 individual knew of and disregarded an excessive risk to Plaintiff and failed to take reasonable 19 steps to abate it. 20 Plaintiff also attempts to allege that Defendant Khorge was deliberately indifferent to his 21 medical needs. However, he also fails to allege that Defendant Khorge was aware of the serious 22 risk of harm to Plaintiff if he did not call for medical attention and that he disregarded that risk by 23 failing to do so. If Defendant Khorge was not aware of any harm to Plaintiff at the time, then he 24 did not violate Plaintiff’s Eighth Amendment right, no matter how great the risk. See Gibson, 290 25 F.3d at 1188. 26 Plaintiff also names the City and County of San Francisco as a defendant but makes no 27 allegation of wrongdoing against them. Dkt. No. 6 at 2-3. Local governments are “persons” 1 tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a city or county 2 may not be held vicariously liable for the unconstitutional acts of its employees under the theory 3 of respondeat superior, see Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 4 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ELIJAH COOPER, Case No. 5:23-cv-03969 EJD (PR)
7 Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND 8 v.
9 CITY AND COUNTY OF SAN FRANCISCO, et al., 10 Defendants. 11 12 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 13 1983 against the City and County of San Francisco and Sheriff Deputy Khorge. Dkt. No. 6 at 2. 14 Then over a month later, Plaintiff then filed a document which was construed as an amended 15 complaint. Dkt. No. 10. Plaintiff’s motion for leave to proceed in forma pauperis was granted. 16 Dkt. No. 11. This matter was reassigned to the undersigned on December 22, 2023. Dkt. No. 15. 17 18 DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. See 28 22 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 23 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 24 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro 25 se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 26 F.2d 696, 699 (9th Cir. 1988). 27 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 1 alleged violation was committed by a person acting under the color of state law. See West v. 2 Atkins, 487 U.S. 42, 48 (1988). 3 B. Plaintiff’s Claims 4 Plaintiff claims that on June 30, 2023, he was ordered by a “San Francisco Sheriff deputy” 5 to carry a “portable” telephone upstairs. Dkt. No. 6 at 2. Plaintiff fell, causing the telephone to 6 land on himself. Id. at 3. Plaintiff claims that Deputy Khorge did not call for medical assistance. 7 Id. Plaintiff claims that his leg was injured during the incident, and that he has “pain in my body 8 with blood come out” when he uses the bathroom. Plaintiff alleges the telephone weighed 200 9 pounds. Id. Plaintiff seeks damages. Id. In the subsequent filing, Plaintiff provides a copy of his 10 grievance and a “health authorization.” Dkt. No. 10-1 at 1-3. Accordingly, the document which 11 was docketed as an “amended complaint” was not intended to supersede the original but rather to 12 provide supplemental material. 13 Prisoners have a right under the Eighth Amendment to be free from exposure to unsafe 14 conditions and from deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 15 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The failure of prison officials 16 to protect inmates from dangerous conditions at the prison violates the Eighth Amendment when 17 two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) 18 the prison official is, subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 19 U.S. at 834. A prison official is deliberately indifferent if he knows of and disregards an excessive 20 risk to inmate health or safety by failing to take reasonable steps to abate it. Id. at 837. 21 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 22 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 23 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part 24 on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 25 banc); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of “deliberate 26 indifference” involves an examination of two elements: the seriousness of the prisoner’s medical 27 need and the nature of the defendant’s response to that need. See McGuckin, 974 F.2d at 1059. A 1 significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d at 2 1059 (citing Estelle, 429 U.S. at 104). 3 A prison official is deliberately indifferent if he knows that a prisoner faces a substantial 4 risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer, 5 511 U.S. at 837. The prison official must not only “be aware of facts from which the inference 6 could be drawn that a substantial risk of serious harm exists,” but he “must also draw the 7 inference.” Id. If a prison official should have been aware of the risk, but was not, then the 8 official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County 9 of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 10 The allegations in the complaint are insufficient to proceed with any Eighth Amendment 11 claim. First of all, Plaintiff’s allegation that he was ordered to carry a 200-pound portable 12 telephone upstairs, liberally construed, implicates Plaintiff’s Eighth Amendment right to be 13 protected from unsafe conditions. Ordering an inmate to carry a 200-pound item upstairs by 14 himself is objectively an unsafe condition. However, the allegations are insufficient to proceed on 15 this claim because Plaintiff fails to name the individual who exposed him to this unsafe condition, 16 having only identified him as a “San Francisco Sheriff deputy”. See supra at 2. Secondly, 17 Plaintiff must allege sufficient facts to satisfy the second subjective element, i.e., that this 18 individual knew of and disregarded an excessive risk to Plaintiff and failed to take reasonable 19 steps to abate it. 20 Plaintiff also attempts to allege that Defendant Khorge was deliberately indifferent to his 21 medical needs. However, he also fails to allege that Defendant Khorge was aware of the serious 22 risk of harm to Plaintiff if he did not call for medical attention and that he disregarded that risk by 23 failing to do so. If Defendant Khorge was not aware of any harm to Plaintiff at the time, then he 24 did not violate Plaintiff’s Eighth Amendment right, no matter how great the risk. See Gibson, 290 25 F.3d at 1188. 26 Plaintiff also names the City and County of San Francisco as a defendant but makes no 27 allegation of wrongdoing against them. Dkt. No. 6 at 2-3. Local governments are “persons” 1 tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a city or county 2 may not be held vicariously liable for the unconstitutional acts of its employees under the theory 3 of respondeat superior, see Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 4 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). 5 Nowhere in the complaint does Plaintiff allege that an official policy or custom caused a 6 constitutional tort. Accordingly, unless Plaintiff is able to state a Monell claim against the City 7 and County of San Francisco, this defendant must be dismissed from this action. 8 Plaintiff shall be granted leave to amend to attempt to correct the deficiencies discussed 9 above. In preparing an amended complaint, Plaintiff should keep the following legal principles in 10 mind. Liability may be imposed on an individual defendant under § 1983 only if Plaintiff can 11 show that the defendant proximately caused the deprivation of a federally protected right. See 12 Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 13 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of § 14 1983 if he does an affirmative act, participates in another’s affirmative act or omits to perform an 15 act which he is legally required to do, that causes the deprivation of which the plaintiff complains. 16 See Leer, 844 F.2d at 633. 17 18 CONCLUSION 19 For the foregoing reasons, the Court orders as follows: 20 1. The complaint is DISMISSED with leave to amend. Within twenty-eight (28) 21 days of the date this order is filed, Plaintiff shall file an amended complaint to correct the 22 deficiencies described above. The amended complaint must include the caption and civil case 23 number used in this order, Case No. 23-cv-03969 EJD (PR), and the words “AMENDED 24 COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the 25 questions on the form in order for the action to proceed. The amended complaint supersedes the 26 original, the latter being treated thereafter as non-existent. Ramirez v. Cty. of San Bernardino, 806 27 F.3d 1002, 1008 (9th Cir. 2015). Consequently, claims not included in an amended complaint are 1 See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 2 2. Failure to respond in accordance with this order in the time provided will 3 result in the dismissal with prejudice of this action for failure to state a claim, without 4 further notice to Plaintiff. 5 3. The Clerk shall include two copies of the court’s complaint with a copy of this 6 order to Plaintiff. 7 4. The Clerk shall correct Docket No. 10 to indicate that it is a “SUPPLEMENT TO 8 COMPLAINT” rather than an amended complaint. 9 IT IS SO ORDERED. 10 Dated: January 24, 2024 EDWARD J. DAVILA 1] United States District Judge 3 12
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