The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN THIRTY DAYS (Doc. 1)
Plaintiff Johnny Earl Evans ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 13, 2007.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
II. Plaintiff's Eighth Amendment Medical Care Claims
Plaintiff is currently housed at the California State Prison Corcoran. The events giving rise to the claims at issue in this action allegedly occurred at Kern Valley State Prison in Delano. Plaintiff alleges a violation of his Constitution rights stemming from prison officials' failure to provide him with proper and/or adequate medical treatment.
Plaintiff alleges that he injured his right Achilles tendon on February 3, 2006 while playing handball. Plaintiff was seen by Defendant Patel, who examined him and recommended that plaintiff be urgently seen by an orthopedic specialist. Defendant Patel informed plaintiff that the recommendation would need to be approved by the Medical Board Panel, headed by the Chief Medical Officer. Plaintiff states that the Medical Board approved the recommendation in May 2006, three and a half months later. Plaintiff states that he was examined by defendant Smith, who informed plaintiff that he had a partially ruptured tendon that healed with scar tissue, and that surgical repair at that late stage was not advisable. Plaintiff alleges that he continued to be in pain, and that he was seen again by defendant Patel on October 26, 2006. Plaintiff states that defendant Patel recommended that he be urgently re-evaluated by defendant Smith. Plaintiff alleges that when defendant Zamora reviewed plaintiff's 602 grievance, s/he altered plaintiff's medical status from "urgent" to "routine".
Plaintiff then filed a third level review. Plaintiff alleges that defendant Grannis, on behalf of defendant Tilton, concluded that plaintiff's tendon was examined and treated as medically necessary. Plaintiff was subsequently transferred to Centinela State Prison in May 2007. Plaintiff states that a MRI was finally performed, which confirmed that the tendon was partially torn with severe scar tissue damage. Plaintiff was informed that the scar tissue would need to be surgically removed, and that there would be permanent tissue damage. Plaintiff states that to date, he has not received any pain medication, therapy or special made shoe wear, as recommended by the surgeon.
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)).
Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id. (citing McGuckin at 1060 (internal quotations omitted)). Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).
Plaintiff has sufficiently alleged the existence of a serious medical need and that further harm resulted due to the delay in properly treating his injury. Further, Plaintiff has alleged sufficient facts to allow him to proceed against Defendant Zamora for violation of the Eighth Amendment. Plaintiff's allegations are sufficient to support a claim that based on defendant Zamora's knowledge of Plaintiff's injury and complaints, defendant may be liable under the Eighth Amendment. Plaintiff has also alleged sufficient facts to proceed against defendant John Doe Chief Medical Officer, who headed the Medical Board Panel that took three and a half months to approve plaintiff's referral to a specialist.
However, Plaintiff's allegations do not give rise to a claim for relief against Defendant Patel, who initially saw Plaintiff after his injury and later re-examined plaintiff on October 26, 2006. Defendant Patel examined plaintiff's injury and in both instances recommended that plaintiff be immediately seen by an orthopedic surgeon. The fact that defendant Patel did not order an MRI, and the fact that plaintiff was not seen immediately as defendant Patel recommended, does not support an Eighth Amendment claim against him. There is simply no ...