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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ERIC W. BELL, 

Plaintiff(s),

 vs.

CHARLES C. PLUMMER, et al.,

Defendant(s). 

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No. C 09-2524 CRB (PR)

ORDER OF DISMISSAL WITH

LEAVE TO AMEND

Plaintiff has filed a pro se civil complaint for damages under 42 U.S.C. §

1983 alleging that, while he was incarcerated at the Alameda County Jail

("ACJ"), jail officials stopped giving him medication for a serious skin infection. 

He names no individual defendants other that former sheriff Plummer, however. 

DISCUSSION

A. 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). 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). Pro se pleadings must be liberally construed, however. 

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Although pretrial detainees' claims arise under the Due Process Clause,

the Eighth Amendment serves as a benchmark for evaluating those claims. See

Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (8th Amendment guarantees

provide minimum standard of care for pretrial detainees). 

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 

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).

B. Legal Claims

Deliberate indifference to serious medical needs violates the Eighth

Amendment's proscription against cruel and unusual punishment. See Estelle v.

Gamble, 429 U.S. 97, 104 (1976). A prison official is deliberately indifferent if

he 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).1

Plaintiff will be afforded an opportunity to amend to allege deliberate

indifference to serious medical needs, if possible. He must also name individual

defendants and allege how each of them actually and proximately caused the

deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d 628,

634 (9th Cir. 1988). The Alameda County Sheriff's Office and former sheriff

Plummer cannot be liable under § 1983 solely on the theory that they were

responsible for the actions or omissions of their employees. See Taylor v. List,

880 F.2d 1040, 1045 (9th Cir. 1989).

CONCLUSION

For the foregoing reasons, the complaint is dismissed with leave to amend,

as indicated above, within 30 days of this order. The pleading must be simple

and concise and must include the caption and civil case number used in this order

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and the words FIRST AMENDED COMPLAINT on the first page. Failure to

file a proper amended complaint within the designated time will result in the

dismissal of this action.

Plaintiff is advised that the amended complaint will supersede the original

complaint and all other pleadings. Claims and defendants not included in the

amended complaint will not be considered by the court. See King v. Atiyeh, 814

F.2d 565, 567 (9th Cir. 1987).

SO ORDERED.

DATED: Jan. 7, 2010 

CHARLES R. BREYER

United States District Judge

G:\PRO-SE\CRB\CR.09\Bell, E1.dwlta.wpd

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