The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS(ECF No. 10) THIRTY-DAY DEADLINE
Plaintiff Carlos Herrera ("Plaintiff") is a state prisoner proceeding
pro se and in forma pauperis in this civil rights action pursuant to
42 U.S.C. § 1983. Initially the amended complaint, filed June 19,
2009, was screened and went forward upon Plaintiff 's claims against
Defendants Lopez, Hall, Grannis, Turella, Penner, Zamora, and Moonga
for deliberate indifference to serious medical needs.*fn1
Subsequently, the United States Supreme Court issued the
decision in Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009),
which ushered in stricter pleading standards. See Moss
v. U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009) (citing
Iqbal; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
II. Screening Requirement
In light the decision in Iqbal, Plaintiff's claims in this action against Defendant Turella require screening due to the changed pleading standards. As Plaintiff is already aware, 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). "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) (emphasis added).
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." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969. "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). 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).
"[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." Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010) (quoting Jett, 439 F.3d at 1096).
In his first amended complaint, filed June 19, 2009, Plaintiff alleges that he was diagnosed with Hepatitis C in February 2003 and requested combination therapy from May 5, 2004 through January 19, 2009. Plaintiff claims that he was eligible for the treatment pursuant to all prison medical protocol. Plaintiff routinely requested a liver biopsy, but was denied based on his age and false reports included in his medical file. (First Amend. Compl. § IV, ECF No. 10.)
Plaintiff specifically requested Hepatitis treatment from Defendants Turella, Lopez, and Penner and was wrongfully denied treatment. (Id. at 4.) In October 2006, Plaintiff requested a combination therapy from Defendant Lopez and was informed that he did not qualify for the requested treatment due to his drug and mental health history. Plaintiff does not have a history of drug use or mental health issues so he requested a copy of his medical records. A review of the records showed that another inmate's medical record was mistakenly placed in Plaintiff's file. Plaintiff informed Defendant Lopez about the error, but Defendant Lopez still refused to provide treatment. (Id.) Plaintiff claims to have suffered severe injury due to being denied treatment. (Id. at 5.) Plaintiff's allegations that Defendant Lopez failed to provide treatment after being informed that the denial was based on another inmates medical records and he has suffered harm is sufficient to state a claim against Defendant Lopez.
However, Plaintiff has failed to state a cognizable claim that Defendants Turella or Penner acted with deliberate indifference to Plaintiff's serious medical condition. Jett, 439 F.3d at 1096. 2006). 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. Conn, 591 F.3d at 1095 (quoting Jett, 439 F.3d at 1096). "Deliberate indifference is a high legal standard." Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1019 (9th Cir. 2010); 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's allegation that he was "wrongfully" denied treatment fails to state a plausible claim against Defendants Turella or Penner for a violation of the Eighth Amendment. Iqbal, 129 S. Ct. at 1949. Plaintiff claims that he was denied treatment due to a false report being included in his medical records. According to the complaint neither Defendant Turella or Penner were aware that the information in Plaintiff's medical file was incorrect. While Plaintiff alleges that he was eligible for treatment, Defendant Turella and Penner found he was not eligible due to his drug and mental health history. As alleged Plaintiff has merely stated a difference of opinion between him and his medical providers in the ...