ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 1) THIRTY-DAY DEADLINE
Plaintiff Cesar Luna ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
The events in the complaint took place at Sierra Conservation Center ("SCC"), where Plaintiff is housed. Plaintiff filed this action on June 18, 2010, against Defendants Cate, St. Clair, Forster, Bangi, Lovett, and Mark Twain St. Joseph Hospital, in their individual and official capacities and he is seeking compensatory and punitive damages for alleged misdiagnosis and treatment of his medical condition.
The complaint states that Plaintiff was diagnosed with a severely degenerated meniscus, which was causing him knee pain. On February 20, 2008, Plaintiff alleges that Defendant Michael Forster, M.D. assured him that MRIs are very accurate and "if the MRI does not find anything, there may not be a surgical cure." (Doc. 1, Comp., p. 4.)
Plaintiff saw Defendant Craig Lovett, M.D. on May 15, 2008. During the consultation, Defendant Lovett explained the risks, benefits, and alternatives to surgery to Plaintiff. Plaintiff remembers Defendant Lovett suggesting he could drill a couple of holes into the area and remove whatever meniscus was still present to eliminate the pain Plaintiff was experiencing. Plaintiff alleges that he agreed to have surgery based upon Defendant Lovett's comments during this consultation and the statements Defendant Foster made regarding the MRI. Defendant Lovett performed the surgery at Mark Twain St. Joseph Hospital on June 25, 2008. Id.
When Plaintiff returned to SCC following surgery, he alleges that Defendant Edwin Bangi, M.D. failed to provide crutches as ordered by Defendant Lovett and failed to explain what "weight bearing as tolerated" meant. Id.
Plaintiff claims that, while the doctors diagnosed his pain as resulting from a severely degenerated meniscus, he actually only had minor arthritis. He alleges that due to the misdiagnosis he underwent an unnecessary surgery, has scars, and has problems with his knee that were not present prior to the surgery. Id. For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief.
[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, 104 (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 (9th Cir. 1991), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
Deliberate indifference is shown where there was "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and the indifference caused harm. Jett, 439 F.3d at 1096. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an inference that "a substantial risk of serious harm exists" and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Plaintiff alleges that the doctors misdiagnosed his injury and an unnecessary surgery was performed causing him to have additional knee problems. An allegation by Plaintiff that a physician has been merely indifferent or negligent or has committed medical malpractice in diagnosing or treating a medical condition does not state a constitutional claim. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980); Toguchi, 391 F.3d at 1057. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. As alleged, the complaint fails to state more ...