1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 STEPHEN PAULE KENNEDY, Case No. 24-cv-08907-WHO (PR)

Plaintiff, 7

ORDER DISMISSING COMPLAINT

v. 8 WITH LEAVE TO AMEND

9 CHIEF MEDICAL OFFICER, et al., Dkt. No. 4 Defendants. 10

11 12 INTRODUCTION 13 Plaintiff Stephen Paule Kennedy alleges that medical staff at Salinas Valley State 14 Prison provided constitutionally inadequate medical care for his broken finger. His 42 15 U.S.C. § 1983 complaint containing these allegations is now before me for review pursuant 16 to 28 U.S.C. § 1915A(a). 17 Kennedy’s allegations fail to state a claim that any person was deliberately 18 indifferent. It is unclear whether two medical personnel (Son and Yeh) had the authority 19 to order treatment or were even qualified to diagnose his injury. His allegations against 20 Dr. Lameer show that Lameer took some steps to treat him and therefore was not 21 deliberately indifferent. His allegations against the grievance reviewers fail to state any 22 claim for relief. Accordingly, the complaint is DISMISSED with leave to file an amended 23 complaint on or before June 2, 2025. 24 Kennedy’s motion for the appointment of counsel is DENIED. (Dkt. No. 4.) 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 5 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 7 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 8 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 9 plausibility when the plaintiff pleads factual content that allows the court to draw the 10 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 11 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 12 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 13 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 14 (9th Cir. 1994). 15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 16 elements: (1) that a right secured by the Constitution or laws of the United States was 17 violated, and (2) that the alleged violation was committed by a person acting under the 18 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 19 B. Legal Claims 20 Kennedy alleges that on December 10, 2020 at Salinas Valley State Prison, his 21 finger was broken when two inmates attacked him. (Compl., Dkt. No. 1 at 4.) He says 22 that many unnamed staff failed to take his complaints of pain and injury seriously. His 23 allegations against them are insufficient, and his allegations against identified defendants 24 are not plausible. 25 Kennedy says that he told Son, who is either a doctor or physician’s assistant, and 26 Michael Yeh, a physician’s assistant, that his finger hurt and was likely broken. (Id. at 6.) 27 However, he does not state specifically what they failed to do, whether they were qualified 1 and he blames other unnamed persons for failing to send him for further medical care. 2 (Id.) He also alleges that Son and Yeh said at some point that “we are not doing a[n] 3 M.R.I.” (Id. at 9.) But he has not shown that these persons had the authority to order an 4 MRI (or were just following directions from someone in authority) or had the medical 5 qualifications to know that one was required. 6 Kennedy alleges that Dr. M.Z. Lameer “failed to diagnose and treat finger fracture 7 as well” and that he left that appointment “untreated.” (Id. at 6.) A prison official is 8 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm 9 and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 10 511 U.S. 825, 837 (1994) (equating the standard with that of criminal recklessness). But 11 Kennedy states that Lameer issued two orders, one for physical therapy and another for an 12 MRI. (Id. at 8.) These facts show that Lameer did take some reasonable action to address 13 Kennedy’s symptoms and attempted to diagnose the injury by ordering an MRI. Without 14 more, this does not constitute deliberate indifference under the Eighth Amendment. 15 Kennedy names other persons as defendants but alleges no specific facts against 16 them. No claims can proceed without a sufficient factual showing. 17 Kennedy’s allegations against grievance reviewers, such as the Chief Medical 18 Officer, are DISMISSED without leave to amend. Mere involvement in reviewing an 19 inmate’s administrative grievance does not necessarily demonstrate awareness of an 20 alleged violation or contribute to the underlying violation. George v. Smith, 507 F.3d 605, 21 609 (7th Cir. 2007). “Only persons who cause or participate in the violations are 22 responsible.” Id. “Ruling against a prisoner on an administrative complaint does not cause 23 or contribute to the violation.” Id. 24 Finally, it is not clear whether Kennedy’s action will be able to state a plausible 25 claim. His pending motion for the appointment of counsel is DENIED. (Dkt. No. 4.) He 26 may refile a motion for counsel with his amended complaint and I will consider whether 27 appointment of counsel is allowed under the allegations presented then. 1 CONCLUSION 2 The complaint is DISMISSED with leave to file an amended complaint on or before 3 || June 2, 2025. The amended complaint must include the caption and civil case number 4 || used in this order (24-08907 WHO (PR)) and the words FIRST AMENDED 5 || COMPLAINT must be written on the first page. The amended complaint must also appear 6 || on this Court’s form, a copy of which will be sent to him. Because an amended complaint 7 || completely replaces the previous complaints, plaintiff must include in his first amended 8 || complaint all the claims he wishes to present and all of the defendants he wishes to sue. 9 || See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate 10 || material from the prior complaint by reference. Failure to file a proper amended complaint 11 || by June 2, 2025 may result in dismissal of this action under Federal Rule of Civil 2 Procedure 41(b) for failure to prosecute. 5 13 Kennedy’s motion for the appointment of counsel is DENIED. (Dkt. No. 4.) S 14 The Clerk shall terminate Dkt. No. 4. 3 15 IT IS SO ORDERED. a 16 || Dated: April 21, 2025 ( .

Z 7 ILLIAM H. ORRICK

18 United States District Judge 19 20 21 22 23 24 25 26 27 28