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Heber Huerta v. Dr. A. Traquina

September 13, 2011

HEBER HUERTA, PLAINTIFF,
v.
DR. A. TRAQUINA, ET AL., DEFENDANTS.



ORDER

Heber Huerta, an inmate confined at California State Prison, Solano, filed this pro se civil rights action under 42 U.S.C. § 1983. The 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).

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceedin forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 6. Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

II. Screening Order

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). 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).

Plaintiff purports to bring claims that defendants were deliberately indifferent to his medical needs and retaliated against him in violation of the First Amendment. The court finds, that for the limited purposes of § 1915A screening, plaintiff has stated a cognizable First Amendment retaliation claim against defendant Whitfield. However, plaintiff has not alleged sufficient factual matter to state a plausible claim that any defendant was deliberately indifferent to his medical needs in violation of the Eighth Amendment.

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). A serious medical need is one that significantly affects an individual's daily activities, an injury or condition a reasonable doctor or patient would find worthy of comment or treatment, or the existence of chronic and substantial pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc).

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). To act with deliberate indifference, a prison official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he knows that plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842. A physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id. Moreover, it is well established that mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

Plaintiff fails to state a cognizable claim under these standards. He alleges that he filed inmate appeals in order to obtain a colostomy reversal surgery, Compl., ¶¶ 1-3, and claims that defendant Kromann "interfere[d] with and attempt[ed] to deny [plaintiff] medical care." Id., ¶ 4.

However, plaintiff does not allege how Kromann interfered with or denied plaintiff medical care. Plaintiff also alleges that defendant Johnson denied him medication on several occasions. Id.,

¶¶ 4-5. Plaintiff does not allege why Johnson denied him his medication, why plaintiff needed the medication, or whether plaintiff suffered any harm as a result of Johnson's alleged actions. Next, plaintiff claims that defendant Blake used offensive language and failed to dispense plaintiff's medications after surgery. Id., ¶ 8. Again, plaintiff does not allege why Blake denied him his medication, why plaintiff needed the medication, or whether plaintiff suffered any harm as a result of Blake's alleged actions. Plaintiff also names Traquina, Rallos, Rohrer, Haseltine, Cisneros, and Brimhall as defendants, but does not allege any facts showing that they were personally involved in violating plaintiff's federal rights.

Plaintiff may proceed forthwith to serve defendant Whitfield and pursue his First Amendment claim against him or he may delay serving Whitfield and attempt to state a cognizable Eighth Amendment claim against the remaining defendants. If plaintiff elects to attempt to amend his complaint, he has 30 days so to do. He is not obligated to amend his complaint. However, if plaintiff elects to proceed forthwith against Whitfield, then within 30 days he must return materials for service of process enclosed herewith.

Any amended complaint must adhere to the following requirements: It must be complete in itself without reference to any prior pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff ...


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