The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a federal prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983,*fn1 and is proceeding in forma pauperis. Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). By order filed January 12, 2012, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an amended complaint.
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, id. "Threadbare 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). However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotations and citations omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.
Plaintiff, a 22 year old male, suffered from testicular torsion,*fn2 and alleges that defendants' failure to provide adequate medical care resulted in the loss of his right testicle. Plaintiff did not file his amended complaint on the form provided by the court. Thus, plaintiff's amended complaint does not clearly identify the individuals plaintiff seeks to name as defendants herein. If plaintiff chooses to file a second amended complaint, he should start with the court's complaint form so that it is clear who plaintiff is naming as defendants, and provides all necessary information. It appears that plaintiff names eight individuals as defendants, which this court will address seriatim.
Plaintiff names as defendants certain doctors at Saint Mary's Hospital who treated plaintiff, or reviewed certain medical test results for plaintiff, on October 17, 2010. Plaintiff claims these defendants failed to "notice a possible testicular torsion," in reviewing the CT scan, DX abdomen 1 view, and US retroperitoneal complete. (Dkt. No. 16 at 7.) Plaintiff contends defendant Laughlin "supervised, ordered, and verified the inadequate medical care" which allegedly caused plaintiff injury. (Id.)
In Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that inadequate medical care did not constitute cruel and unusual punishment cognizable under § 1983 unless the mistreatment rose to the level of "deliberate indifference to serious medical needs." An official is deliberately indifferent if he both knows of and disregards an excessive risk to an inmate's health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, to demonstrate deliberate indifference, a plaintiff must establish that the alleged harm was "sufficiently serious" and that the official acted with a "sufficiently culpable state of mind." Id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298, 302-03 (1991)).
Thus, a prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 834. Deliberate indifference may be shown "when prison officials deny, delay or intentionally interfere with medical treatment," or in the manner "in which prison physicians provide medical care." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).
"[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. Isolated occurrences of neglect do not constitute deliberate indifference to serious medical needs. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) ("If the harm is an 'isolated exception' to the defendant's 'overall treatment of the prisoner [it] ordinarily militates against a finding of deliberate indifference."); McGuckin, 974 F.2d at 1060; O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Therefore, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment." Estelle, 429 U.S. at 106. Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990) ("Although Wood's treatment was not as prompt or efficient as a free citizen might hope to receive, Wood was given medical care at the prison that addressed his needs.")
Here, plaintiff provides copies*fn3 of the test results he claims these doctors allegedly misread, and none of these tests reveal a view of plaintiff's testicles, but reflect views of his abdomen, spleen, pancreas, liver, gallbladder, bowel, pelvis, kidneys, and bladder. (Dkt. No. 16 at 21-25.) None of these test results reflect plaintiff suffered from testicular torsion. (Id.) Plaintiff concedes that his discharge impression was "impression of constipation." (Dkt. No. 16 at 7.) The amended complaint and appended documents demonstrate that plaintiff presented with complaints of abdominal and supra pubic pain, and was provided with multiple medical tests, including lab tests and a CT scan, on October 17, 2010. (Dkt. No. 16 at 17-25.) The Emergency Department Record reflects that torsion risk factors were noted as none, and that medical professionals considered the following differential diagnoses during plaintiff's evaluation: appendicitis, constipation, urolithiasis, or UTI (urinary tract infection). (Dkt. No. 16 at 20.) Although the exam notes reflect plaintiff's right testicle was tender to palpation, the diagnosis of testicular torsion was not considered during plaintiff's evaluation, and there are no indications that plaintiff's right testicle was swollen at that time. (Id.) Plaintiff did not complain of scrotal pain, nausea, or vomiting. (Id.)
Thus, plaintiff's allegations fail to state a cognizable claim that defendants Colby, Laughlin, and Michelson were deliberately indifferent to plaintiff's serious medical needs. Rather, it appears defendants Colby, Laughlin, and Michelson did not believe plaintiff was suffering from testicular torsion on October 17, 2010, or misdiagnosed plaintiff's symptoms as constipation. Negligent misdiagnosis or medical malpractice do not constitute deliberate indifference. In addition, plaintiff alleges no facts suggesting defendants Colby, Laughlin or Michelson acted with the culpable state of mind required to state a claim of deliberate indifference. Plaintiff's allegations fail to rise to the level of a constitutional violation, and plaintiff should not include defendants Colby, Laughlin and Michelson in any second amended complaint.
Plaintiff names MLP Paraiso as a defendant. Plaintiff's allegations as to defendant Paraiso are insufficient for the court to determine whether plaintiff is able to state a cognizable Eighth Amendment claim. Plaintiff appears to allege that MLP*fn4 Paraiso did not refer plaintiff to a doctor, and that "at that moment the injury could have worsened." (Dkt. No. 16 at 8.) Plaintiff alleges defendant Paraiso told plaintiff he had constipation and suggested plaintiff drink lots of fluids and take fiber or Metamucil. (Id.) However, as noted above, plaintiff was previously diagnosed by a medical doctor as having constipation, and Paraiso's recommended treatment comports with the treatment recommended by the doctor at the emergency room on October 17, 2010. Plaintiff also fails to allege any facts demonstrating that defendant Paraiso acted with a culpable state of mind, rather than either misdiagnosing, or having a different opinion as to, plaintiff's condition. A mere difference of opinion between a prisoner and ...