United States District Court, N.D. California
October 19, 2005.
IVAN LEE MATTHEWS, Plaintiff,
PISTONE, JACKSON AND LAUBER, Defendants.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER OF DISMISSAL
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
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 medical authorities
regarding treatment does not give rise to a § 1983 deliberate
indifference claim. Franklin v. Oregon, 662 F.2d 1337, 1344
(9th Cir. 1981). Nor, as previously noted, does a claim of
negligence related to medical problems. See Wood,
900 F.2d at 1334; Franklin, 662 F.2d at 1344.
Plaintiff's medical care allegations must be dismissed because
they do not amount to more than a claim for negligence or medical
malpractice or do not rise to the level of constitutional injury
cognizable under § 1983. See, e.g., Frost v. Agnos,
152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in claims stemming
from alleged delays in administering pain medication, treating
broken nose and providing replacement crutch, because claims did
not amount to more than negligence); O'Loughlin v. Doe,
920 F.2d 614, 617 (9th Cir. 1990) (finding that isolated occurrences
of neglect may constitute grounds for medical malpractice but do
not rise to level of unnecessary and wanton infliction of pain).
Plaintiff's allegations that he did not receive any kind of
treatment or pain medication for his elbow do not indicate that
Defendants were deliberately indifferent to Plaintiff's medical
needs. The amended complaint indicates that Plaintiff was seen by
Dr. Pistone on April 29, 2003, and was advised to run water over
the elbow, presumably to reduce the swelling.*fn1 Plaintiff's concern that he had
an infection and his disagreement with Pistone's treatment does
not give rise to a deliberate indifference claim. Franklin,
662 F.2d at 1344. Furthermore, Plaintiff's allegations that
Defendants failed to provide an Ace-wrap bandage, sling or cast,
as the orthopedist recommended, do not rise to the level of
deliberate indifference to a serious medical need. "[A]
plaintiff's showing of nothing more than `a difference of medical
opinion' as to the need to pursue one course of treatment over
another was insufficient, as a matter of law, to establish
deliberate indifference." Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996).
Plaintiff's medical care claims are DISMISSED because they fail
to state a claim for deliberate indifference to serious medical
needs. The Court has already given Plaintiff leave to amend his
original complaint to state a cognizable claim under § 1983. As
it appears Plaintiff cannot cure the defects of his claims, the
amended complaint will be dismissed without leave to amend.
For the foregoing reasons, the amended complaint is hereby
DISMISSED. The Clerk shall close the file and enter judgment in
IT IS SO ORDERED.
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