The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On October 21, 2009, plaintiff also filed a motion to appoint counsel.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states a cognizable claim against defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina. See 28 U.S.C. § 1915A.
For the reasons stated below, the court finds that the complaint does not state a cognizable claim against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May. The claims against those defendants are hereby dismissed with leave to amend.
Plaintiff may proceed forthwith to serve defendants Bowers, St. Laurant, Nurse Miller and Dr. Medina and pursue his claims against only those defendants, or he may delay serving any defendant and attempt to state a cognizable claim against defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May.
If plaintiff elects to attempt to amend his complaint to state a cognizable claim against any or all of the defendants Perez, Swingle, Agyeman, Nepomuceno, Baker, Bryant, Shaw, Withers and May, he has thirty days so to do. He is not obligated to amend his complaint.
Plaintiff states that he suffers from nerve damage and has undergone disc replacement surgery both of which result in severe pain. He states that he has been prescribed gabapitin and tramadol for treatment. Plaintiff's claims involve failure to receive medication in a timely manner from prison medical staff at High Desert State Prison (HDSP). Plaintiff states that he did not receive medication at the appropriate times during several intervals from 2007 to 2009. From August 2007 to December 2007, plaintiff contends that he did not receive his medication several times from nurses. Though it is not entirely clear from the complaint, it appears that plaintiff received his medication two to four times a day. Plaintiff does not identify the nurses who failed to bring the medication during this time period Between January 1, 2008, and July 10, 2008, plaintiff alleges that unnamed nurses did not bring him medication on 10 occasions, sometimes in the morning and sometimes at night. Plaintiff also provides a day by day account of a few months in January and February 2009, where he did not receive his prescription for Ensure and other medications, from unnamed defendants. Plaintiff also attempts to attach liability to supervising medical staff at HDSP without properly describing how they were involved.
With respect to these alleged incidents of not receiving his medication, plaintiff provides general statements that just missing one prescription causes him pain, but provides no further details. These allegations do not rise to the level of deliberate indifference required to bring a claim under the Eighth Amendment and plaintiff has failed to identify the appropriate defendants for these claims.
In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4 (1992).
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. Indications that a prisoner has a serious need for medical treatment are the following: 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. See, e.g., Wood v. Housewright, 900 F.2d 1332');">900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
In Farmer v. Brennan, 511 U.S. 825 (1994) the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37. Neither is it sufficient that a reasonable person would have known of the risk or that a defendant should have known of the risk. Id. at 842.
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party ...