The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER RECOMMENDING THAT ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 12) PLAINTIFF'S OBJECTIONS DUE 10/13/10
Findings and Recommendation Resulting From Screening of Plaintiff's Second Amended Complaint
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on December 17, 2007. (ECF No. 1.) After determining that such Complaint failed to state a claim upon which relief could be granted, the Court dismissed Plaintiff's Complaint with leave to amend. (ECF No. 6.) Plaintiff'S First Amendment Complaint was filed on July 23, 2008. (ECF No. 8.) The Court found that Plaintiff still failed to state a claim and granted Plaintiff leave to amend. (ECF No. 11.) Plaintiff's Second Amended Complaint was filed on February 18, 2010 and is now pending before the Court.
II. Screening Requirement
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).
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)(2). Detailed factual allegations are not required, but "[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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal, 129 S.Ct. at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.
Plaintiff alleges that on November 17,*fn1 he awoke with severe chest pains. He sought assistance from Defendant. Defendant was not at her assigned post, and Plaintiff was forced to hunt her down. This effort compounded the stress on his heart and when Plaintiff finally located Defendant, he was out of breath and unable to speak. Another staff member responded and rendered aid such that Plaintiff regained his ability to speak. Plaintiff informed Defendant that he wanted his vitals taken and an EKG. Defendant told Plaintiff that an EKG was expensive and that Plaintiff was not worth the money.
The other staff member took Plaintiff's vitals. Plaintiff's blood pressure was 156/97 and his pulse was 116. Plaintiff alleges that he was very close to a full arrest and that his heart was fighting for oxygen.
A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)).
A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970 (1994). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment," or in the manner "in which prison physicians provide medical care." 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). 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, 974 F.2d at 1060 (citing Shapely v.Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).
The Court finds that Plaintiff's allegations fall short of stating any plausible claims arising from constitutionally inadequate medical care. "Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Toguchi at 1057 (quoting Farmer, 511 U.S. at 837).
The fact that Defendant was not at her post when Plaintiff sought medical treatment does not state a claim for the Eighth Amendment violation because Defendant was unaware of Plaintiff's medical condition at that time. Once Plaintiff located Defendant and made her aware of his medical condition, Plaintiff's allegations show that he was given medical assistance by a medical attendant. The fact that Defendant made derogatory comments to Plaintiff while he was being treated by her associate does not state a claim for deliberate indifference. See Johnson v. Unknown ...