RUDOLPH MORALEZ, Case No. 20-cv-07860-RMI
Plaintiff, ORDER OF DISMISSAL WITH LEAVE v. TO AMEND
RON DAVIS, et al., Defendants.
Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 and the Americans with Disabilities Act. He has been granted leave to proceed in forma pauperis in a separate order (dkt. 9) and he has consented to the jurisdiction of a magistrate judge (dkt. 4). 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 from an 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 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). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 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). Legal Claims Plaintiff alleges that defendants fails to distribute facemasks and as a result he was infected with Coronavirus. Deliberate 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 a “deliberate indifference” claim 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. 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. The existence of 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. A 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 “must also draw the inference.” Id. If a prison official should have been aware of the risk, but did not actually know, 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). In addition, a “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference . . . [and] [a prisoner] would have no claim for deliberate medical indifference unless the denial was harmful.” Shapely v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Title II of the Americans with Disabilities Act of 1990, 42 U.S.C.§ 12101 et seq. (“ADA”), provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In his Complaint (dkt. 1), Plaintiff states that the California Department of Corrections and Rehabilitation failed to distribute facemasks, and that he later contracted Coronavirus. Plaintiff seeks money damages under the ADA, however, Plaintiff fails to state a claim under the ADA. He does not describe a benefit or service that was denied to him due to a disability. Liberally construing the Complaint, Plaintiff may be able to proceed with a civil rights action under 42 U.S.C. § 1983. The complaint, therefore, is dismissed with leave to amend such that Plaintiff can provide more information. Plaintiff should not include his ADA claim; instead, he should identify specific 1 Amendment under the standard described above. He should describe his medical condition that 2 resulted from being infected with Coronavirus, as well as identifying the Defendant(s) that denied 3 his requests for a facema
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RUDOLPH MORALEZ, Case No. 20-cv-07860-RMI
Plaintiff, ORDER OF DISMISSAL WITH LEAVE v. TO AMEND
RON DAVIS, et al., Defendants.
Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 and the Americans with Disabilities Act. He has been granted leave to proceed in forma pauperis in a separate order (dkt. 9) and he has consented to the jurisdiction of a magistrate judge (dkt. 4). 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 from an 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 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). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 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). Legal Claims Plaintiff alleges that defendants fails to distribute facemasks and as a result he was infected with Coronavirus. Deliberate 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 a “deliberate indifference” claim 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. 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. The existence of 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. A 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 “must also draw the inference.” Id. If a prison official should have been aware of the risk, but did not actually know, 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). In addition, a “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference . . . [and] [a prisoner] would have no claim for deliberate medical indifference unless the denial was harmful.” Shapely v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Title II of the Americans with Disabilities Act of 1990, 42 U.S.C.§ 12101 et seq. (“ADA”), provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In his Complaint (dkt. 1), Plaintiff states that the California Department of Corrections and Rehabilitation failed to distribute facemasks, and that he later contracted Coronavirus. Plaintiff seeks money damages under the ADA, however, Plaintiff fails to state a claim under the ADA. He does not describe a benefit or service that was denied to him due to a disability. Liberally construing the Complaint, Plaintiff may be able to proceed with a civil rights action under 42 U.S.C. § 1983. The complaint, therefore, is dismissed with leave to amend such that Plaintiff can provide more information. Plaintiff should not include his ADA claim; instead, he should identify specific 1 Amendment under the standard described above. He should describe his medical condition that 2 resulted from being infected with Coronavirus, as well as identifying the Defendant(s) that denied 3 his requests for a facemask. Simply identifying the prison warden or the secretary of the entire 4 prison system and failing to describe their conduct is insufficient.! 6 The Complaint is therefore DISMISSED with leave to amend in accordance with the 7 standards set forth above. The amended complaint must be filed within twenty-eight (28) days of 8 the date this order is served and must include the caption and civil case number used in this order 9 and the words “AMENDED COMPLAINT” on the first page. Because an amended complaint 10 completely replaces the original complaint, Plaintiff must include in it all the claims he wishes to 11 present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate 12 material from the original complaint by reference. Failure to amend within the designated time 13 may result in the dismissal of this case. 14 It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed 15 of any change of address by filing a separate paper with the clerk headed “Notice of Change of 16 Address,” and must comply with the court’s orders in a timely fashion. Failure to do so may result 17 in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 18 aio), 20 Dated: January 25, 2021 21 Mt Z 22 RQ@BERT M. ILLMAN 23 United States Magistrate Judge 24 25 26 27 ' There were errors when the court docketed plaintiff's case. Yet, it does appear that plaintiff also included a motion to compel certain ADA records. It is not clear how this relates to this case and the court notes that 28 it appears to be a copy of Plaintiff’s motion in an another case. See Moralez v. Davis, Case No. 15-2457 WHO (dkt. 54). Plaintiff should explain how this filing relates to the instant case.