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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RICHARD DE’VONN WEBB,

Plaintiff,

v.

C.E. DUCART, et al.,

Defendants.

Case No. 17-cv-00330-HSG (PR) 

ORDER OF DISMISSAL

INTRODUCTION

Plaintiff, an inmate at Centinela State Prison, proceeding pro se, filed this civil rights 

action pursuant to 42 U.S.C. § 1983 against officials and staff at Pelican Bay State Prison 

(“PBSP”), where he was previously incarcerated. Plaintiff alleged claims for deliberate 

indifference to serious medical needs against five medical staff defendants as well as PBSP 

Warden Ducart and Acting Warden Barnes. The Court identified various deficiencies in plaintiff’s 

complaint and dismissed it with leave to amend. Plaintiff has filed an amended complaint in 

which he names only one defendant—PBSP Nurse Sue Risenhoover. The amended complaint is 

now before the Court for review under 28 U.S.C. § 1915A.

DISCUSSION

A. Standard of Review 

A federal court must conduct a preliminary screening in any case in which a prisoner seeks 

redress from a governmental entity or officer or 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 

that 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. See 28 U.S.C. § 1915A(b)(1), 
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United States District Court

Northern District of California

(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 

Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). 

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, 127 S. Ct. 2197, 2200 (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, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 

must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974. 

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 violation was committed by a person acting under the color of state law. See West v. 

Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

In his amended complaint, plaintiff alleges that, from June 2015 to January 2016, Nurse 

Risenhoover failed to properly diagnose plaintiff’s Graves Disease. Despite plaintiff’s weight loss 

and body aches, Nurse Risenhoover diagnosed plaintiff with a psychiatric condition and treated 

him within the California Department of Corrections and Rehabilitation’s Mental Health Delivery 

System. In January 2016, plaintiff was transferred to Centinela State Prison, and he was properly 

diagnosed within days.

Although regrettable, plaintiff’s allegations that Nurse Risenhoover misdiagnosed him 

amount to no more than a claim for negligence or gross negligence. Neither negligence nor gross 

negligence is actionable under § 1983 in the prison context. See Farmer v. Brennan, 511 U.S. 

825, 835-36 & n.4 (1994). The applicable standard is one of deliberate indifference to inmate 

health or safety under the Eighth Amendment, see Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 
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United States District Court

Northern District of California

U.S. 294, 302 (1991). The amended complaint, like the original complaint fails to satisfy the

subjective prong of an Eighth Amendment claim in that it does not allege facts suggestive of 

deliberate indifference by prison officials to a known risk to plaintiff’s health or safety. There is 

no indication that the omissions at issue were intentional or anything more than isolated 

occurrences of negligence or gross negligence by PBSP staff. This may be enough for plaintiff to 

pursue a negligence claim in state court, but it is not enough to state a deliberate indifference claim 

under § 1983 in federal court.

Accordingly, the action must be dismissed for failure to state a federal claim. Further 

leave to amend will not be granted because the Court already has explained to plaintiff the specific 

deficiencies in his pleadings, and he has been unable to correct them. However, the dismissal is 

without prejudice to re-filing in state court based on an alleged violation of state law.

CONCLUSION

For the foregoing reasons, this action is DISMISSED for failure to state a claim upon 

which relief may be granted. Plaintiff’s motion for leave to proceed in forma pauperis (“IFP”) is 

DENIED as moot because he has already been granted IFP status. The Clerk shall terminate all 

pending motions, enter judgment, and close the file.

IT IS SO ORDERED.

Dated:

HAYWOOD S. GILLIAM, JR.

United States District Judge

9/29/2017