The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on April 4, 2011. (Dkt. No. 1.) On June 11, 2012, plaintiff filed a First Amended Complaint ("FAC") pursuant to the court's screening order of December 22, 2011. (Dkt. No. 27.)
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. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
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 Corp. v. Twombly, 550 U.S. 544 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. His allegations are very similar to those in the original complaint. (See Dkt. No. 13 at 3.) Specifically, plaintiff asserts that his medical treatment for high cholesterol over the course of several years fell below constitutional standards.
He was diagnosed with this condition in 2000 at High Desert State Prison (FAC, ¶ 8); prescribed medication in 2004 (id., ¶10); received normal lipid test results in 2004 and 2006 (id., ¶¶15, 18.); had his dose of medication doubled in 2007 to determine whether this would raise his "good cholesterol" level (id., ¶ 19); and received normal lipid test results in 2007 (id., ¶ 20).
In 2007, plaintiff was prescribed a different medication for high cholesterol and complained of side effects. (Id., ¶¶ 21-22.) Plaintiff was temporarily taken off medication, and tested for higher than normal "bad cholesterol" in June 2007. (Id., ¶ 24.)
In October 2008, after filing a grievance on this subject, plaintiff was seen by a doctor and prescribed a third medication, along with aspirin. (Id., ¶¶26-30.) In December 2008, plaintiff filed a grievance stating that his medication was limited and expired, and his recent blood test has not been completed. (Id., ¶ 31.) More medication was ordered and plaintiff's blood test was rescheduled. (Id., ¶ 32.) In January 2009, plaintiff filed a grievance asserting that the medication he had been prescribed "aren't medications, that I am aware, . . . used for lowering cholesterol, these medications . . . are associated with lowering heart attacks." He also claimed that the prescribed medication was "too powerful for my system" and caused various side effects. He requested his original medication. (Id., ¶ 33.)
In February 2009 and again in June 2009, plaintiff's lipid test results showed higher than normal "bad cholesterol." (Id., ¶¶ 34, 35.) In an October 2009 Director's Level Review of plaintiff's administrative appeals, defendant Kimura Yip stated: "Over the past several months, progress notes indicated you were essentially without significant problems." (Id., ¶ 36.) A September 2010 lipid test indicated normal results. (Id., ¶ 37.) In January 2012, plaintiff was transferred to another institution. (Id., ¶ 45.)
Denial or delay of medical care for a prisoner's serious medical needs may constitute a violation of the prisoner's Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). An individual is liable for such a violation only when the individual is deliberately indifferent to a prisoner's known serious medical needs. Id.; see Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). To establish deliberate indifference, an individual defendant must have "purposefully ignore[d] or fail[ed] to respond to a prisoner's pain or possible medical need." McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). "Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights." Id. at 1059. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Or. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Furthermore, where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay caused "significant harm and that Defendants should have known this to be the case." Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. Mere delay of medical treatment, "without more, is insufficient to state a claim of deliberate medical indifference." Shapley v. Nev. Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
As in the original complaint, assuming arguendo that plaintiff's high cholesterol constitutes a serious medical need, he has not alleged deliberate indifference by any named defendant. While plaintiff's allegations are organized and detailed, they do not state a constitutional claim for medical indifference. Rather, they show that medical staff regularly tested plaintiff's cholesterol levels and prescribed medication to treat his high cholesterol over the course of several years. His allegations amount to mere ...