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February 6, 2003


The opinion of the court was delivered by: Martin J. Jenkins, United States District Judge


Plaintiff Richard Rios, an inmate at the Federal Correctional Institute in Lompoc, California, has filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. He alleges that while he was incarcerated at Santa Clara County Jail he received inadequate medical care for injuries sustained when he fell out of his upper bunk. By separate order, he has been granted leave to proceed in forma pauperis.


Plaintiff alleges that on December 23, 2001, he fell out of the top bunk while he was sleeping. He sustained a cut, bruises and swelling in his face and was in severe pain and dizzy. He spent three hours in a holding cell before he received any medical attention or pain reliever, at which point his injuries were tended to and he received stitches for his cut. The stitches were eventually removed. He alleges that he did not receive any further follow-up care, although he later received medication for headaches and backaches and sleeping problems.


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. 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 id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under § 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 color of state law. See 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); 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). 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. See McGuckin, 974 F.2d at 1059. In order for deliberate indifference to be established, there must be a purposeful act or failure to act on the part of the defendant and resulting harm. See id. at 1060. 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. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). A claim of mere negligence related to medical problems is not enough to make out a violation of the Eighth Amendment, nor is "a difference of opinion between a prisoner-patient and prison medical authorities regarding treatment." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

Plaintiff's allegations do not state a claim under the Eighth Amendment because he has alleged at most negligence. Plaintiff's allegations make clear that he received medical attention from defendants at the jail: they tended to his injuries within three hours, stitched his cuts, later removed the stitches, and provided him with medication to address his ongoing symptoms of headaches, backaches and sleep loss. The delay of three hours in receiving treatment, even if it constitutes negligence, does not rise to the level of deliberate indifference to plaintiff's medical needs. Compare, e.g., Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (holding delays in administering pain medication, treating droken nose and providing replacement crutch did not constitute deliberate indifference); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (holding repeated failures to satisfy requests for aspirins and antacids to alleviate headaches, nausea and pain does not rise to level of unnecessary and wanton infliction of pain); Anthony v. Dowdle, 853 F.2d 741, 743 (9th Cir. 1988) (holding no constitutional violation alleged where prison warden and work supervisor failed to provide prompt and sufficient medical care). The allegation that he did not receive follow-up care after the stitches were removed is belied by his statement that he later received medication for his ongoing pain and sleep-loss symptoms. He does not indicate what other type of follow-up medical treatment, if any, he should have received, and even if he had, this would at most amount to negligence when considered in the context of all of the medical care plaintiff did receive. There is no allegation or indication that defendants acted deliberately in failing to provide him with the medical care necessary to address his injuries. Accordingly, plaintiff's allegations to not amount to a cognizable claim for the violation of his constitutional rights, and because plaintiff's factual allegations establish that his medical treatment is constitutional, there is no indication that the claims could be fairly cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).

The court notes that plaintiff still has recourse to seek whatever medical care he needs from the medical personnel at the facility where he is now incarcerated.


For the reasons expressed, plaintiff's claims under ยง 1983 are DISMISSED for failure to state a ...

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