1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 GREGORY CASH MCDOWELL, 11 Case No. 23-cv-02971 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND 13 v.

14 TREVOR MURPHY, 15

Defendant. 16

17 18 Plaintiff, who is currently confined at the San Francisco County Jail, filed the 19 instant pro se civil rights action pursuant to

against Sheriff Deputy 20 Trevor Murphy of the San Francisco County Sheriff’s Department. Dkt. No. 1 at 2.1 21 Plaintiff has filed a motion for leave to proceed in forma pauperis which will be addressed 22 in a separate order. Dkt. No. 2. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 7 To state a claim under

, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins,

(1988). 11 B. Plaintiff’s Claims 12 Plaintiff describes his claim as “malpractice and professional negligence” and 13 “miscarriage of authority.” Dkt. No. 1 at 2. Plaintiff claims that on April 20, 2022, he was 14 injured while playing basketball in the “rec area” due to “bad county issued shoes as well 15 as slippery floor.” Id. at 3. Plaintiff claims that Deputy Murphy contacted medical, but 16 that he was not seen for almost two days. Id. Once Lt. Zehner found out, he had deputies 17 escort Plaintiff to medical, forcing him to walk a “strenuous distance” on his injured leg. 18 Id. He was diagnosed with a torn meniscus, and returned to his cell without support, such 19 as a wheelchair. Id. On November 15, 2022, physical therapist D. Mullin saw that 20 Plaintiff’s right knee was still swollen with a torn meniscus. Id. Plaintiff claims he has 21 asked for pain medications and written unanswered grievances. Id. Plaintiff claims “due 22 to professional negligence and malpractice,” he is seeking damages and corrective surgery. 23 Id. Plaintiff claims he is permanently disabled and will never be able to perform 24 construction or walk normal again. Id. 25 These allegations are insufficient to state a cognizable claim under § 1983. First of all, 26 Plaintiff names only one Defendant – Deputy Trevor Murphy. However, his only 1 unclear how this action resulted in injury to Plaintiff or violated his constitutional rights. 2 Accordingly, this allegation is not sufficient to establish liability under § 1983 against 3 Defendant Murphy. Furthermore, Plaintiff asserts “malpractice and professional 4 negligence” without explaining how Defendant Murphy’s actions, or any other 5 individual’s actions, were tortious. But even if he did so, claims of malpractice and 6 negligence are not cognizable under § 1983, for such claims are insufficient to make out a 7 violation of the Eighth Amendment. See Toguchi v. Chung,

(9th Cir. 8 2004); Hallett v. Morgan,

(9th Cir. 2002); Franklin v. Oregon,

1337, 1344 (9th Cir. 1981). In other words, Plaintiff fails to satisfy the first element of a § 10 1983 claim, i.e., that a right secured by the Constitution or laws of the United States was 11 violated. See West v. Atkins,

. 12 Plaintiff shall be granted leave to amend to attempt to state an Eighth Amendment 13 claim based on deliberate indifference to serious medical needs. Deliberate indifference to 14 serious medical needs violates the Eighth Amendment’s proscription against cruel and 15 unusual punishment. Estelle v. Gamble,

(1976); McGuckin v. Smith, 974

, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. 17 Miller,

(9th Cir. 1997) (en banc). A determination of a “deliberate 18 indifference” claim involves an examination of two elements: the seriousness of the 19 prisoner’s medical need and the nature of the defendant’s response to that need.

at 20 1059. 21 Regarding the first element, a serious medical need exists if the failure to treat a 22 prisoner’s condition could result in further significant injury or the “unnecessary and 23 wanton infliction of pain.”

The existence of an injury that a reasonable doctor or 24 patient would find important and worthy of comment or treatment, the presence of a 25 medical condition that significantly affects an individual’s daily activities, or the existence 26 of chronic and substantial pain are examples of indications that a prisoner has a serious 1 official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk 2 of serious harm and disregards that risk by failing to take reasonable steps to abate it. 3 Farmer at 837. The prison official must not only “be aware of facts from which the 4 inference could be drawn that a substantial risk of serious harm exists,” but “must also 5 draw the inference.”

If a prison official should have been aware of the risk, but did not 6 actually know, the official has not violated the Eighth Amendment, no matter how severe 7 the risk. Gibson v. County of Washoe,

(9th Cir. 2002). 8 In preparing an amended complaint, Plaintiff should keep the following in mind. 9 Liability may be imposed on an individual defendant under § 1983 only if Plaintiff can 10 show that the defendant proximately caused the deprivation of a federally protected right. 11 See Leer v. Murphy,

(9th Cir. 1988). A person deprives another of a 12 constitutional right within the meaning of section 1983 if he does an affirmative act, 13 participates in another’s affirmative act or omits to perform an act which he is legally 14 required to do, that causes the deprivation of which the plaintiff complaints. See Leer, 844 15 F.2d at 633. 16 17 CONCLUSION 18 For the foregoing reasons, the Court orders as follows: 19 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 20 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct 21 the deficiencies described above. The amended complaint must include the caption and 22 civil case number used in this order, Case No. 23-02971 BLF (PR), and the words 23 “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 24 must answer all the questions on the form in order for the action to proceed. The amended 25 complaint supersedes the original, the latter being treated thereafter as non-existent. 26 Ramirez v. Cty. Of San Bernardino,

(9th Cir. 2015). Consequently, 1 |} named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 2 || F.2d 1258, 1262 (9th Cir. 1992). 3 2. Failure to respond in accordance with this order in the time provided 4 || will result in the dismissal with prejudice of this action for failure to state a claim, 5 || without further notice to Plaintiff. 6 3. The Clerk shall include two copies of the court’s complaint with a copy of 7 || this order to Plaintiff. 8 IT IS SO ORDERED. 9 || Dated: __ October 30, 2023 flinfhacian 10 BETH LABSON FREEMAN United States District Judge 11 g

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Oo Z 18 19 20 21 22 23 24 95 Order of Dism. With Leave to Amend PRO-SE\BLF\CR.23\02971McDowell_dwlta 26 27