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Swanson v. Martel

November 15, 2010

CHAD SWANSON, PLAINTIFF,
v.
MICHAEL MARTEL, ET AL, DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On September 23, 2010, the court directed plaintiff to file a second amended complaint. On October 20, 2010, plaintiff filed a second amended complaint. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

I. Claims Against Defendants Martel, Fallon, Reaves, Feltner, and White

The second amended complaint includes allegations very similar to those contained in the earlier filed complaints. Plaintiff again alleges that defendants Martel, Fallon, Reaves, Feltner, and White subjected plaintiff to inhumane and unsafe prison conditions because they failed to inspect and remedy potential hazards on the A-recreational yard, which resulted in plaintiff injuring his back and neck when he tripped over a non-color coded water spigot protruding from the ground. The court has repeatedly informed plaintiff that these allegations are insufficient for purposes of stating a cognizable Eighth Amendment claim.

The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992). To determine whether an Eighth Amendment violation has occurred, a court should consider the circumstances, nature and duration of a deprivation of these necessities. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (referring to necessities such as adequate shelter, food, clothing, sanitation, medical care, and personal safety). Further, plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

While plaintiff labels defendants' alleged acts and/or omissions as "deliberately indifferent," his allegations suggest negligence at worst and thus, fail under the above standards. In light of the fact that the court has previously provided plaintiff with two opportunities to amend his claims against defendants Martel, Fallon, Reaves, Feltner, and White, the court finds that plaintiff is unable to cure the deficiencies in these claims and will not be granted further leave to amend.

II. Claim Against Defendant Naseer

Plaintiff alleges that after he tripped on the water spigot, defendant Naseer "did not take [the] accident serious, undermind[ed] [plaintiff's] medical concerns as minimal, [and that the] medical attention provided to [plaintiff] has been minimal to none." Dckt. No. 11 at 8. Plaintiff claims that because of Naseer's actions, he has been forced to suffer pain in his neck and back. Plaintiff claims he is forced to walk long distances to the dining room twice a day, or to not eat because he is not being "bed-fed." Id. at 9. He also claims he is forced to climb up to a top bunk, and his only recourse is to ask other inmates for their pain medication "due to the delayed medical attention or lack thereof," by Naseer. Id.

To state a section 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 defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). Deliberate indifference may be shown by the denial, delay or intentional interference with medical treatment or by the way in which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

Here, plaintiff fails to allege how Naseer was personally involved in violating his rights. There are no facts suggesting that Naseer knew of and disregarded a substantial risk of serious harm to the plaintiff. Moreover, plaintiff does not allege that he is immobile or otherwise explain why having to walk to the dining hall or climb to a top bunk violates his constitutional rights. Nor does he attribute these conditions to any defendant. Plaintiff's claim against Naseer is therefore dismissed with leave to amend.

Moreover, the exhibits to plaintiff's complaint suggest that plaintiff did, in fact, receive immediate medical attention following his fall. In an inmate appeal drafted by plaintiff and attached to the complaint, plaintiff states that after he was injured, he was "medically bused to the infirmary (triage), where [he] was given a pain shot, [an] order for muscle relaxers and pain medication, with a one day lay-in and ordered back to [his] cell." Dckt. No. 11, Ex. D. Further, medical records attached to plaintiff's complaint show that an x-ray of plaintiff's back was taken on June 26, 2009, the results of which were within normal limits. Id., Ex. E.

Plaintiff is hereby informed that neither defendant's negligence nor plaintiff's general disagreement with the treatment he received suffices to state a claim. Estelle, 429 U.S. at 106; Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988); Jackson v. McIntosh, 90 F.3d 330, 331 (9th Cir. 1996).

III. Claim Against Defendant Akintola

Plaintiff alleges that he was prescribed Neurontin for "pain release" and the "tingling sensation" in his limbs. Dckt. No. 11 at 9. Plaintiff alleges that on September 4, 2009, defendant Akintola stopped plaintiff's Neurontin prescription, causing plaintiff to lose consciousness and experience more pain. Plaintiff's conclusory allegations do not set forth sufficient factual allegations that would suggest that Akintola knew of and disregarded a substantial risk of serious harm to the plaintiff. It is plaintiff's responsibility to allege facts to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Since plaintiff does not set forth ...


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