The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. On July 19, 2010, plaintiff filed a second amended complaint. Pursuant to this court's June 29, 2010 order, this action is proceeding as to plaintiff's claims raised in administrative grievance DVI-08-1570. (Dkt. No. 17 at 3-4.)
Plaintiff has been previously informed of the requirement that this court screen plaintiff's second amended complaint pursuant to 28 U.S.C. § 1915A(b)(1),(2). (Dkt. Nos. 12 & 17.)
In the second amended complaint, plaintiff names eleven defendants. 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 injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff fails to specifically articulate what actions each defendant took that plaintiff alleges violated his constitutional rights. Instead, plaintiff states, CDCR-Psych services personnel both at DVI and here at High Desert State Prison have willfully with malice of forethought consistently refused to treat [him] with the correct psychotropic medications that [he has] been on for many years that CDCR started [him] on. (Dkt. No. 18 at 5.) Plaintiff claims he suffers from two strains of the Hepatitis C virus and the deprivation of these previously-prescribed medications are "injuring and destroying [his] liver function." (Id.)
However, the administrative appeals provided by plaintiff demonstrate that plaintiff's liver function is normal and there is no evidence of liver compromise. (Dkt. No. 15 at 13.) The second level appeal response claims the medication change was per "new standardized care statewide pharmacy and therapies," and "the decision to change the use of this medication was made for safety issues." (Dkt. No. 15 at 16.) Moreover, plaintiff's second level appeal was partially granted and stated: your appeal was reviewed by clinical staff familiar with your care; you were currently at the CCCMS level of care and were receiving services that exceeded [community] standards; you were receiving some of the medications that you had been receiving in the past, the medication you were receiving was prescribed based on an assessment of your diagnosis and treatment needs; there are many approaches to providing treatment; and you would continue to be closely monitored by your treatment team. You were encouraged to speak with your treatment team regarding your symptoms and functioning.
"Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations and quotation marks omitted). Mere differences of opinion between a prisoner and prison medical staff as to appropriate medical care also do not give rise to a § 1983 claim. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
Plaintiff's statement that defendants refuse to treat him with the "correct" psychotropic medications, along with the administrative appeals provided by plaintiff, demonstrate he has a difference of opinion with the mental health care he was provided at DVI. This is insufficient to state a civil rights claim. The documents provided by plaintiff refute plaintiff's claim that defendants were deliberately indifferent based on their failure to prescribe drugs plaintiff believes he should receive. Rather, the record reflects plaintiff's medications are prescribed by psychiatric professionals, he is being seen by medical professionals, and is being "closely monitored." (Dkt. No. 15 at 20.)
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
For the reasons set forth above, the second amended complaint will be dismissed, but in an abundance of caution plaintiff will be given one final opportunity in which to file a third amended complaint that states a cognizable civil rights claim. If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions about which he complains resulted in a deprivation of plaintiff's constitutional rights. Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the third amended complaint must allege in specific terms how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 ...