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October 19, 2005.


The opinion of the court was delivered by: JEFFREY WHITE, District Judge


Plaintiff, a prisoner of the State of California formerly incarcerated at Salinas Valley State Prison in Soledad, California, has filed this civil rights complaint. On December 14, 2004, the Court dismissed claim one with leave to amend (docket no. 6). Plaintiff filed an amended complaint on January 5, 2005 (docket no. 7). For the reasons discussed below, the amended complaint is dismissed for failure to set forth cognizable claims under 42 U.S.C. § 1983.


  I Standard of Review

  Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id., § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

  To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 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. West v. Atkins, 487 U.S. 42, 48 (1988).

  II. Legal Claim

  Plaintiff complains about medical treatment he received while incarcerated at Salinas Valley State Prison. Specifically, Plaintiff complains that on April 13, 2003, he was exercising and experienced what felt like a tear in his left arm. Plaintiff alleges that he went to the medical office and told Defendants Lauber, Jackson and Pistone that he felt something tear in his left elbow and was in a lot of pain. Plaintiff alleges that Jackson and Lauber told him to fill out a medical service form, which he did. Plaintiff alleges that he was not treated or examined that day. The next day when Plaintiff awoke with swelling in his left elbow, he returned to the medical office. Plaintiff alleges that Pistone, Jackson and Lauber ignored his medical condition.

  Plaintiff further alleges that on April 23, 2003, he submitted another medical service request. Plaintiff alleged that he was called to the medical office on April 29, 2003, and was told to see Dr. Pistone. Plaintiff claims that he told Dr. Pistone that he felt a tear in his elbow while exercising, that he was in pain, that he could barely move his elbow and that it may be infected. Plaintiff complains that Dr. Pistone looked at his elbow without examining it, told Plaintiff that this was a common problem which happens to wrestlers, and advised Plaintiff to run water over his elbow and stop crying. (Am. Compl., ¶ 19.)

  Plaintiff alleges that two weeks thereafter, he returned to the medical office for pain medication. (Am. Compl., ¶ 21.) Plaintiff filled out another medical service request on May 26, 2003. See Exs. to Am. Compl. Plaintiff also filed a 602 Inmate Appeal Form complaining of Dr. Pistone's negligence and malpractice on May 25, 2003. Id. On June 11, 2003, Dr. Hollie saw Plaintiff and prescribed Tylenol and referred Plaintiff to see an orthopedic specialist. (Am. Compl., ¶ 22.) On July 17, 2003, an orthopedist saw Plaintiff and determined that he had bursitis as well as a possible, partial tendon tear. Plaintiff alleges that the orthopedist recommended an Ace-wrap, arm sling and a cast, and that these recommendations were not carried out. (Am. Compl., ¶¶ 28, 29.) Plaintiff asserts that he was denied adequate medical treatment regarding the injury to his left arm, and claims deliberate indifference to his injury.

  A. Legal Standard

  It is well-established that neither negligence nor gross negligence is actionable under § 1983 in the prison context. See Farmer v. Brennan, 511 U.S. 825, 835-36 & n. 4 (1994); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (gross negligence insufficient to state claim for denial of medical needs to prisoner). Negligence is not actionable under § 1983 even outside of the prison context. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). With regard to claims regarding constitutionally inadequate medical care, the applicable standard is one of deliberate indifference to inmate health or safety under the Eighth Amendment. See Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 302 (1991).

  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) (en banc); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). 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 prison official is deliberately indifferent only 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. Farmer, 511 U.S. at 837. A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." McGuckin, 974 F.2d at 1059 (citing Estelle v. Gamble, 429 U.S. at 104). A difference of opinion between a prisoner-patient and prison ...

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