The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS
Plaintiff Kerry Wilson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132 (Americans with Disabilities Act). Plaintiff filed this action on January 22, 2008.
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)).
The events at issue in this action occurred at the California Substance Abuse Treatment Facility ("CSATF") in Corcoran, where Plaintiff is currently housed. Plaintiff is seeking a declaratory judgment and money damages for the violation of his rights under the Eighth Amendment of the United States Constitution, and the Americans with Disabilities Act. Plaintiff names Nurse Practitioner E. Mulvaney, Chief Medical Officer P. McGuinness,*fn1 Correctional Health Services Administrator G. Martinez, and Medical Appeals Analyst C. M. Heck.
At some unspecified date in the past, Plaintiff was shot in both legs and one knee, and bullet fragments remain in both legs. When Plaintiff was transferred to CSATF on May 31, 2006, he notified medical staff that he suffered from pain and discomfort in both legs, and he requested a cane and a lower bunk on a bottom tier. On July 19, 2006, Plaintiff was examined by Defendant Mulvaney, who decided that Plaintiff did not need a cane but referred Plaintiff to an orthopedic surgeon. Plaintiff subsequently had surgery on November 1, 2006, to remove a bullet fragment from his right thigh. The surgeon ordered a cane, and recommended arthroscopy. Plaintiff still suffers pain in his right knee, his hip, and his left leg, and alleges that the denial of his rights has caused him pain and suffering.
A. Eighth Amendment Medical Care Claim
"[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). 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's disagreement with Defendant Mulvaney's assessment that he did not need a cane does not support a claim that Defendant violated his constitutional rights. Neither "[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a s 1983 claim," Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted), nor a difference of opinion between medical personnel regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Plaintiff has not alleged any facts which would support a claim that Defendant Mulvaney "[knew] of and disregard[ed] an excessive risk to [Plaintiff's] health . . . ." Farmer, 511 U.S. at 837.
Defendants McGuinness, Martinez, and Heck were involved in reviewing and deciding Plaintiff's "Reasonable Modification or Accommodation Request," in which Plaintiff sought via an appeals process a cane, an egg crate mattress, and a lower bunk lower tier chrono. (Doc. 1, Comp., Ex. A.) Defendants Heck and Martinez denied the request at the first ...