The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 1) RESPONSE DUE WITHIN 30 DAYS
Plaintiff Bruce Reese ("Plaintiff") is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was formerly in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff initiated this action by filing his complaint on July 28, 2010.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff was formerly incarcerated at the California Substance Abuse Treatment Facility ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants the CDCR Medical Department. Plaintiff specifically names Chief Medical Officer Enenmoh and physician's assistant Peters.*fn1
Plaintiff alleges the following. Plaintiff was examined by Defendant Peters in January 2010. Defendant Peters was going to schedule Plaintiff for removal of a lipoma on the back Plaintiff's neck and spine. During the exam, Plaintiff was informed by Defendant Peters that because he was taking a blood thinner, Plaintiff was at high risk and the doctor refused to perform the procedure. Defendant also stated that sending Plaintiff to an outside hospital would be too expensive. Plaintiff has been in pain ever since he arrived at CDCR on June 12, 2009, and has been seeking medical treatment since. Plaintiff appealed this issue to the Director's level, and was denied.
Plaintiff seeks as relief an injunction for the treatment of his lipoma, and monetary damages.
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). 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)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know of and disregard an excessive risk to inmate health or safety . . . ." Id. at 837.
"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.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
Plaintiff fails to state a claim. Plaintiff alleges that Defendant Peters refused to remove Plaintiff's lipoma because Plaintiff was taking blood thinners. Plaintiff fails to allege sufficient facts that indicate Defendant Peters knew of and disregarded an excessive risk to Plaintiff's health. It appears that Defendant Peters considered the risks in performing a surgery on Plaintiff while Plaintiff was taking blood thinners, and decided that the risk of such a procedure outweighed the benefits. Plaintiff is thus alleging only a difference of opinion with ...