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October 12, 2005.

SILVIA GARCIA, et al., Defendants.

The opinion of the court was delivered by: MARILYN HUFF, Chief Judge

I. Procedural History
Plaintiff, a state prisoner incarcerated at the Correctional Training Facility located in Soledad, California, and proceeding pro se, has initiated a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that, while he was incarcerated at Calipatria State Prison, prison officials refused to provide him with adequate medical care in violation of his Eighth Amendment rights, and failed to properly address his medical concerns through CDC 602 Inmate Grievance procedures. See Compl. at 3-4.

On February 23, 2005, however, the Court dismissed Plaintiff's action without prejudice for failing to pay the civil filing fee mandated by 28 U.S.C. § 1914(a) or, in the alternative, for failing to submit a properly supported Motion to Proceed In Forma Pauperis ("IFP"). (See Feb. 23, 2005 Order at 6.) The Court also sua sponte dismissed Plaintiff's Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A(b)(1), finding specifically that Plaintiff had failed to allege facts sufficient to show that any named Defendant acted with deliberate indifference to his serious medical needs, (id. at 5 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)), or facts sufficient to show how the allegedly inadequate handling of his prison grievance amounted to a violation of a protected liberty interest in violation of the Due Process Clause of the Fourteenth Amendment. (Id. at 5 (citing Sandin v. Conner, 515 U.S. 472, 483-84 (1995)). Nonetheless, the Court granted Plaintiff forty-five (45) days to both: (1) file a First Amended Complaint which addressed the deficiencies of pleading noted in its Order; and (2) file a Motion to Proceed IFP or pay the initial filing fee. Id.

  On March 2, 2005, Plaintiff partially complied with the Court's February 23, 2005 Order by filing a supplemental Motion to Proceed IFP [Doc. No. 6]. Plaintiff did not submit an Amended Complaint; he did, however, later request an extension of time in which to amend [Doc. No. 9].

  On April 19, 2005, the Court granted Plaintiff's Motion to Proceed IFP, and granted his request for an extension of time. (See April 19, 2005 Order at 2-3.) Plaintiff was cautioned that unless his First Amended Complaint was filed on or before May 23, 2005, the Clerk of the Court would be directed to close the file. (Id. at 3.) After granting Plaintiff yet another extension of time, Plaintiff filed his First Amended Complaint ("FAC") on August 29, 2005 [Doc. No. 14].

  II. Screening of Amended Complaint per 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

  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 23, 2005 Order; 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 23, 2005 Order, 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. Eighth Amendment Inadequate Medical Care Claims

  Plaintiff, once again, alleges that all named Defendants violated the Eighth Amendment's proscription on cruel and unusual punishment by denying his request to have an ultrasound performed based on "severe pain" related to "right testicular lumps." See FAC at 26.

  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 v. Gamble, 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).

  While Plaintiff's allegations may be sufficient to allege a serious medical need, he has failed to allege facts sufficient to demonstrate that any of the Defendants were deliberately indifferent to that serious medical need. Plaintiff does not allege that any of the Defendants refused to provide him with medical treatment. The basis of his First Amended Complaint rests on the fact that Plaintiff believed he should have been given an ultrasound that medical personnel at the prison did not believe was necessary. The indifference to medical needs rising to an Eighth Amendment claim must be substantial; inadequate treatment due to malpractice, or even gross negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Plaintiff's claims against Defendants amount to no more than a difference of opinion between medical professionals and their patient, and as such, is insufficient to show the "deliberate indifference" required to support a claim of cruel and unusual punishment under the Eighth ...

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