FINDINGS & RECOMMENDATIONS
Plaintiff is a prisoner proceeding pro se with an action under 42 U.S.C. § 1983. He alleges that defendants Runnels, James, Roche, Cox and Scovel denied or delayed giving him adequate medical treatment in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment. Defendants' motions to dismiss are now before the court.
In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
Plaintiff alleges he was denied or delayed adequate medical care while incarcerated at High Desert State Prison. In Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that inadequate medical care did not constitute cruel and unusual punishment cognizable under section 1983 unless the mistreatment rose to the level of "deliberate indifference" to serious medical needs.
In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, the plaintiff must show 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. " Second, the plaintiff must show the defendant's response to the need was deliberately indifferent. This second prong-defendant's response to the need was deliberately indifferent-is satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference. Indifference may appear 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.
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations & quotations omitted); see also McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled in part on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997).
There is no Eighth Amendment violation if any delay in treatment is not harmful. Shapley v. Nevada Bd. Of State Prison Com'rs., 766 F.2d 404, 407 (9th Cir. 1985). However, unnecessary continuation of pain may constitute the "harm" necessary to establish an Eighth Amendment violation from delay in providing medical care. McGuckin, 974 F.2d at 1062.
An allegation of merely inadvertent or even negligent medical care is not enough to establish a constitutional violation. Estelle, 429 U.S. at 105-06; Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998). A difference of opinion about the proper course of treatment is not deliberate indifference nor does a dispute between a prisoner and prison officials over the necessity for or extent of medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
A medical need is serious if failure to treat the condition could cause further significant injury or the unnecessary and wanton infliction of pain. McGuckin, 974 F.2d at 1059.
The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a "serious" need for medical treatment Id. at 1060.
Each of the defendants has averred essentially the same grounds for dismissal. Collectively, they argue that "the Second Amended Complaint fails to allege that Williams even had a serious medical need, that he saw Defendants for his serious medical need, that Defendants knew that Williams had a serious medical need, and that Defendants knew that Williams faced a substantial risk of serious harm to his health, but failed to take reasonable measures to abate the risk." Joint Reply of Runnels, James and Roche at 2.*fn1
Contrary to defendants' argument, plaintiff has not failed to adequately allege a serious medical need. Plaintiff might have described the nature of his condition with greater specificity in the second amended complaint, but he does state that the condition at issue was "the growing cancer," with a need to be seen by a urologist.*fn2 Second Am. Compl. (Compl.) at 3, 5.*fn3 Although the reference to cancer appears in the section outlining the allegations against defendant Cox, it provides sufficient factual content to support a reasonable inference that cancer is the "serious medical need" pled against every defendant in order to state an Eighth Amendment claim against ...