ORDER OF DISMISSAL WITH LEAVE TO AMEND
Docket No. 91
ROBERT M. ILLMAN, Magistrate Judge.
Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The court granted defendant's unopposed motion for summary judgment on the merits and this case was closed. Docket No. 73. Plaintiff filed an appeal and the Ninth Circuit affirmed the granting of summary judgment but remanded the case to consider plaintiff's claim that he was denied medical care and "to determine whether leave to amend would be appropriate." Docket No. 87 at 2-3.
DISCUSSION
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 employee of a governmental entity. 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 need only "`give the defendant fair notice of what the . . . . claim is and the grounds upon which it 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 he was denied medical treatment after he was allegedly sexually assualted by other detainees.
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment.1 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.
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 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.
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 also "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 "mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference. . . . [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).
In the amended complaint, plaintiff states that he was sexually assaulted by other inmates between March 19, 2014, and March 24, 2014, at the county jail. Docket No. 22 at 3. Plaintiff states he told the sole defendant in this case, Deputy Blandon, about the assault at a March 28, 2014 classification hearing and Blandon denied plaintiff medical care. Id. In the previous motion for summary judgment regarding related matters, the records indicated that plaintiff was released from custody at some point between March 19, 2014, and March 28, 2014, and plaintiff was rearrested on March 28, 2014, which led to his classification hearing with Blandon. Docket No. 73 at 3-4. The classification hearing with Blandon may have in fact occurred on March 29, 2014. Id.
Regardless of what date the classification hearing occurred, plaintiff alleges he was sexually assaulted between March 19 and March 24, he appears to have then been released from custody, was rearrested on March 28 and brought back to the jail where he told Blandon that he needed medical care which was denied. It is unclear if plaintiff was provided medical care when he was originally assaulted and if he received medical care after his release from custody. The amended complaint is dismissed with leave to amend to provide more information about this timeline and what occurred. Plaintiff need to provide specific allegations concerning the assault, his injuries, what medical care he needed, what was denied by Blandon and what prior medical care he received both in and out of custody. Plaintiff must file one second amended complaint that contains all of his allegations. The court will not consider multiple filings.
CONCLUSION
1. Plaintiff's motion for a judgment (Docket No. 91) is DENIED. The amended complaint is DISMISSED with leave to amend in accordance with the standards set forth above. The second amended complaint must be filed within twenty-eight (28) days of the date this order is filed and must include the caption and civil case number used in this order and the words SECOND AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to amend within the designated time will result in the dismissal of this case.
2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address by filing a separate paper with the clerk headed "Notice of Change of Address," and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
