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.
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).
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
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.
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 ...