The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER OF DISMISSAL WITH PREJUDICE
Plaintiff Andres Vargas is a State prisoner who is incarcerated at the Correctional Training Facility in Soledad (CTF). He has filed this civil rights action in which he has been granted leave to proceed in forma pauperis. After conducting a preliminary review of the complaint, the Court determined that Plaintiff's allegations did not state a cognizable claim for relief. On December 1, 2004, the Court granted Plaintiff leave to amend his complaint to cure the pleading deficiencies. The Court informed Plaintiff that the failure to do so would result in the dismissal of the action without prejudice.
On December 21, 2004, Plaintiff filed an amended complaint. The Court now reviews the amended complaint to determine whether the alleged claims are constitutionally cognizable.
For purposes of this review, the Court incorporates by reference the detailed factual summary and analysis set forth in its December 1, 2004 Order.
In his initial complaint, Plaintiff asserted that on April 18, 2003, he met with Dr. T. Friederichs at CTF and told the doctor that he was suffering from diabetes, breathing trouble and an abdominal hernia. Plaintiff asked Dr. Friederichs to accommodate him under the Americans with Disabilities Act (ADA) by transferring him to a medical facility where he could receive a diabetic diet. When Plaintiff's request was denied, he filed an administrative appeal and filled out the prison's form for requesting ADA accommodation.
At the informal level of administrative review, Dr. Friederichs denied Plaintiff's administrative appeal requesting a transfer, stating that he had "very mild, if any" diabetes and did not require transfer to a medical facility. At the first formal level of review Dr. Inderjit Grewal, a staff physician and surgeon at CTF, responded to Plaintiff's appeal and explained to Plaintiff that he was suffering from borderline diabetes and needed to be physically active and lose weight, but did not need to be transferred to a medical facility. Plaintiff's second and third level appeals were denied as well.
Plaintiff's form ADA request, in which he asked for a diabetic diet or transfer, was denied by A. Brager, who told Plaintiff that based on the doctors' assessments of his medical condition he did not require transfer to a facility with a specialized diet because CTF provides all inmates with a "Heart Healthy Diet" from which Plaintiff could choose appropriate foods to eat, and because his condition was not so unique as to require transfer due to dietary or medical necessity. Plaintiff maintained that providing him with a Heart Healthy Diet from which to choose appropriate foods was not adequate to meet his medical needs because he is not a doctor and the prison should provide a special diet for him.
Plaintiff alleged the violation of his Eighth and Fourteenth Amendment rights, and asked for transfer to a medical facility or to be referred to see a specialist.
The Court found that Plaintiff failed to state a claim for deliberate indifference to his serious medical needs. The Court pointed out that even if the Court assumes, without deciding, that Plaintiff's mild diabetes amounted to a serious medical need, he had alleged at most a difference of opinion as to the proper dietary treatment.*fn1 The Court granted Plaintiff leave to amend his complaint to support the inference that the CTF doctors have acted with deliberate indifference to his serious medical needs. Plaintiff was offered the opportunity to demonstrate that the course of treatment the doctors have chosen is medically unacceptable under the circumstances, or that they have chosen this course in conscious disregard of an excessive risk to Plaintiff's health.
Plaintiff has failed to allege any facts which would support a claim that the doctors at CTF have acted with deliberate indifference to his serious medical needs. Plaintiff's amended complaint merely reiterates the allegations in his initial complaint and includes the same exhibits. He realleges that the doctors*fn2 have examined Plaintiff and are of the opinion that he can control his diabetes through exercise and a healthy diet. He further reasserts that he is of the opinion that he would be better served by receiving a specially prescribed diet or being moved to a medical facility. His allegations do not support an inference that the course of treatment the doctors have chosen is medically unacceptable under the circumstances, or that they have chosen this course in conscious disregard of an excessive risk to Plaintiff's health. Plaintiff's claim for deliberate indifference to his serious medical needs is dismissed with prejudice.
For the foregoing reasons, Plaintiff's amended complaint is DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND. The Clerk of the Court ...