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September 21, 2005.


The opinion of the court was delivered by: WILLIAM HAYES, District Judge

On October 21, 2004, Plaintiff, an inmate currently incarcerated at Ironwood State Prison located in Blythe, California, and proceeding pro se filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleged that he was denied adequate medical treatment while he was incarcerated at Centinela State Prison. See Compl. at 3-5. Plaintiff also filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2], as well as a Motion for Appointment of Counsel [Doc. No. 9]. I. Procedural Background

On February 10, 2005, this Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed Plaintiff's Complaint for failing to state a claim upon which § 1983 relief could be granted. See Feb. 20, 2005 Order at 7-8. Specifically, the Court informed Plaintiff that his claims regarding his belief that he was given the wrong medication by prison medical personnel failed to state an Eighth Amendment claim. Id. at 5 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nonetheless, the Court granted Plaintiff thirty (30) days leave to file a First Amended Complaint which corrected the deficiencies of pleading identified in the Court's Order. On March 3, 2005, Plaintiff filed his First Amended Complaint ("FAC").

  The Court sua sponte screened Plaintiff's First Amended Complaint on April 14, 2005 and found that Plaintiff had failed to correct any of the deficiencies of pleading identified in the Court's previous Order. See April 14, 2005 Order at 2-4. Thus, the Court dismissed Plaintiff's First Amended Complaint for failing to state a claim and provided Plaintiff with one final opportunity to file a Second Amended Complaint correcting the deficiencies of pleading identified by the Court. The Court later granted Plaintiff an extension of time to file his Second Amended Complaint ("SAC") which was filed on August 22, 2005.

  II. Sua Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

  A. Standard of Review

  The Court has carefully reviewed Plaintiff's Amended Complaint as mandated by 28 U.S.C. §§ 1915(e)(2) and 1915A and, for the reasons set forth below, finds that it is also subject to sua sponte dismissal because: (1) it fails to cure the deficiencies of pleading identified in the Court's February 10 and April 14, 2005 Orders; and (2) it still fails to state a claim upon which § 1983 relief may be granted. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

  As this Court noted in its February 10 and April 14, 2005 Orders, the Prison Litigation Reform Act ("PLRA") requires courts to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss prisoner and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek monetary relief from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez, 203 F.3d at 1126-27 (§ 1915(e)(2)); Resnick, 213 F.3d at 446 (§ 1915A).

  Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 U.S.C. §§ 1915(e)(2) and 1915A(b) now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before directing that the Complaint be served by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).

  "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the court may nevertheless not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, the court is not required to grant leave to amend if it determines that the pleading "could not possibly be cured by the allegation of other facts," Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)), or if amendment would prove futile. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (where amendment of litigant's complaint would be futile, denial of leave to amend is appropriate). B. Failure to State a Claim

  Plaintiff's Second Amended Complaint alleges no facts which address any of the deficiencies of pleading identified in its February 10 or April 14, 2005 Orders. Similar to his previous pleadings, in his Second Amended Complaint Plaintiff appears to attempt to allege an Eighth Amendment claim against Defendant Ochoa, a Medical Technical Assistant ("MTA"), based upon allegations that Ochoa refused to monitor Plaintiff's blood pressure and he negligently gave Plaintiff the wrong medication.

  In order to assert a claim under the Eighth Amendment for inadequate medical care, Plaintiff must show that each individual prison doctor and medical staff member that he seeks to sue were "deliberately indifferent to his serious medical needs." Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle, 429 U.S. 97, 106 (1976); Lopez v. Dep't of Health Services, 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (holding that private physicians who contract with prisons to provide specialized medical services to indigent prisoners act under color of state law). In order to show deliberate indifference, an inmate must allege sufficient facts to indicate (1) that his medical need is "serious" and (2) that prison officials acted or failed to act in light of that need with a "culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 302 (1991).

  Once again, Plaintiff has alleged that Defendant Ochoa was "negligent" when he provided Plaintiff with the wrong medication. See SAC at 3. However, as the Court previously informed Plaintiff, these allegations of malpractice or even gross negligence do not amount to a constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Plaintiff also alleges that Defendant Ochoa was deliberately indifferent to his serious medical needs when he refused to monitor Plaintiff's blood pressure despite orders from prison doctors. See SAC at 3-5. In the Court's Order dated April 14, 2005, the Court informed Plaintiff that this claim may rise to the level of an Eighth Amendment violation but Plaintiff must allege what injury he suffered as a result of Ochoa's alleged failure to monitor his blood pressure. See April 14, 2005 Order at 2-3. However, Plaintiff has failed to address the concerns of the Court in his Second Amended Complaint. In fact, Plaintiff does not allege that he suffered any harm due to Defendant Ochoa's alleged failure to monitor his blood pressure. Moreover, Plaintiff has attached to his Second Amended Complaint the administrative grievances he filed based upon the facts alleged in his Second Amended Complaint. It appears as though Plaintiff initiated the grievance process on December 4, 2004, nearly two months after he initially filed this action. The plain language of 42 U.S.C. § 1997e(a) provides that no § 1983 action "shall be brought . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). The Ninth Circuit's decision in McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) holds that prisoners who are incarcerated at the time they file a civil action which challenges the conditions of their confinement are required to exhaust "all administrative remedies as are available" as a mandatory precondition to suit. See McKinney, 311 F.3d at 1198; see also Perez v. Wis. Dep't of Corrections, 182 F.3d 532, 534-35 (7th Cir. 1999) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit.") (emphasis original). Section 1997e(a) "clearly contemplates exhaustion prior to the commencement of the action as an indispensable requirement. Exhaustion subsequent to the filing of the suit will not suffice." McKinney, 311 F.3d at 1198 (quoting Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002)). "Requiring dismissal without prejudice when there is no presuit exhaustion provides a strong incentive that will further . . . [the] Congressional objectives [underlying the PLRA's amendments to 42 U.S.C. § 1997e(a)] permitting exhaustion pendente lite will inevitably undermine the attainment of them." Id.

  Thus, because it appears that Plaintiff attempted to exhaust his administrative remedies after he filed this action, this action is subject to dismissal without prejudice for failing to satisfy 42 U.S.C. § 1997e(a). See Wyatt v. Terhune, 315 F.3d 1108, 1121 (9th Cir. 2003) ("if the district court concludes that the prisoner has not [satisfied 42 U.S.C. § 1997e(a)'s Exhaustion requirement], the proper remedy is dismissal of the claim without prejudice."). Thus, the Court finds that Plaintiff's Amended Complaint must be DISMISSED for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Because it does not now appear "at ...

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