United States District Court, N.D. California
October 18, 2005.
GARY DEWAYNE BEARDEN, Plaintiff,
KEVIN SOO-THOO, DR. HOBAN, Defendants.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL
Gary DeWayne Bearden, proceeding pro se and currently
incarcerated in Salinas Valley State Prison ("SVSP"), filed the
above-titled civil rights action under 42 U.S.C. § 1983. He
claims that an SVSP psychologist, Kevin Soo-Thoo ("Soo-Thoo"),
and an SVSP psychiatrist, Dr. Hoban, violated his constitutional
rights by providing him with inadequate medical care. By separate
order, plaintiff has been granted leave to proceed in forma
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 id. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally
construed. See Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1988). 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 Claim
The treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the
Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993).
Deliberate indifference to serious medical needs violates the
Eighth Amendment's proscription against cruel and unusual
punishment. 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) (en banc). 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. A claim of mere negligence in
connection with medical conditions is not enough to make out a
violation of the Eighth Amendment. See Franklin v. Oregon,
662 F.2d 1337, 1344 (9th Cir. 1981).
Here, plaintiff alleges he was diagnosed with depression and
prescribed anti-depressants while incarcerated at the California
Medical Facility ("CMF"). He alleges that after being transferred
to SVSP in early 2004, he was provided with therapy, group
counseling and anti-depressants, but after three weeks the
therapy and group counseling were discontinued. He further
alleges that Soo-Thoo denied his requests for continued therapy
and group counseling sessions. According to plaintiff, in April
2005, Dr. Hoban discontinued the anti-depressants, explaining to
plaintiff "I think it's time you tried to deal with your chronic
depression without medication." Plaintiff complains that his
depression and suicidal thoughts have continued; he states he
wants to have therapy, group counseling and anti-depressants
The medical treatment plaintiff alleges he received does not
amount to deliberate indifference. "A difference of opinion between a prisoner-patient
and prison medical authorities regarding treatment does not give
rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337,
1344 (9th Cir. 1981). In order to prevail on such a claim,
plaintiff would have to establish that the course of treatment
the doctors chose was medically unacceptable under the
circumstances and that they chose this course in conscious
disregard of an excessive risk to plaintiff's health. See
Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004)
(holding nothing more than difference of medical opinion as to
need to pursue one course of treatment over another is
insufficient, as a matter of law, to establish deliberate
indifference). Here, plaintiff, while at SVSP, has received
treatment and medical attention for his condition. After
plaintiff was receiving anti-depressant medication for
approximately one year, Dr. Hoban was of the opinion that
plaintiff should not continue to treat his condition with
anti-depressant medications. Similarly, after three weeks of
therapy and group counseling, plaintiff's psychologist Kevin
Soo-Thoo was of the opinion that such modalities were no longer
necessary for plaintiff's treatment. The fact that plaintiff
disagrees with these decisions, or that his depression continues,
does not mean that the decisions were medically unacceptable or
amounted to deliberate indifference to his serious medical needs.
Consequently, the allegations in plaintiff's complaint, even when
liberally construed, do not state a cognizable claim for relief
under § 1983.
In light of the foregoing, the complaint is hereby DISMISSED
for failure to state a claim upon which relief may be granted.
The Clerk shall close the file.
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.