The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT SWEETLAND'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM BE GRANTED, DISMISSING THIS ACTION (Doc. 84.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Robert Maeshack ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action at the United States District Court for the Eastern District of California, Sacramento Division, on December 22, 2005. (Doc. 1.) On January 5, 2006, the case was transferred to the Fresno Division of the Eastern District of California. (Doc. 5.)
The Court screened the Complaint pursuant to 28 U.S.C. 1915 and issued an order on February 20, 2007, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 15.) On March 16, 2007, Plaintiff filed the First Amended Complaint. (Doc. 17.)
On November 21, 2008, the Court found that Plaintiff sufficiently stated a cognizable claim for relief in the First Amended Complaint against defendant Sweetland for deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment. (Doc. 21.) On January 26, 2011, Defendant filed a motion to dismiss the First Amended Complaint for failure to state a claim. (Doc. 84.) In consideration of the motion to dismiss, the Court re-screened the First Amended Complaint in light of Iqbal and found that Plaintiff failed to state a claim. Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009). Accordingly, the Court issued an order on December 27, 2011, granting Defendant's motion to dismiss the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 106.) Plaintiff filed the Second Amended Complaint on January 11, 2012. (Doc. 108.)
On March 3, 2012, Defendant filed a motion to dismiss the Second Amended Complaint for failure to state a claim. (Doc. 117.) On May 4, 2012, Plaintiff filed an opposition to the motion. (Doc. 119.) Defendant's motion to dismiss is now before the Court.
II. SUMMARY OF THE SECOND AMENDED COMPLAINT
Plaintiff was a state prisoner at Avenal State Prison ("ASP") in Avenal, California, and Sierra Conservation Center ("SCC") in Jamestown, California, during the time of the events at issue, and Dr. Sweetland was a physician employed at SCC while Plaintiff was incarcerated there. Plaintiff alleges as follows in the Second Amended Complaint.
On April 23, 2004, while housed in administrative segregation at ASP, Plaintiff was bitten by a rat and became sick soon afterward.
In 2005 Plaintiff was transferred to SCC, where he was interviewed by Dr. Sweetland about the rat bite, the pain he was suffering as a result, and possible disease. On multiple occasions, Dr. Sweetland ordered medications for Plaintiff without any basis and without performing tests or making a diagnosis. "Dr. Sweetland was guessing what would work best for whatever disease came to his mind." Second Amd Cmp at 3 ¶IV. Dr. Sweetland ordered Plaintiff to take Doxycyline from June 6, 2006 to July 14, 2006, Toradol from June 2, 2006 to June 7, 2006, Methocabamol from July 24, 2006 to August 24, 2006, Naprazen from July 25, 2006 to August 24, 2006, Hydroxychloroquin from August 2, 2006 to October 31, 2006, Prilosec from August 2, 2006 to October 31, 2006, and Prednisone. The medications made Plaintiff sicker and he began to have bad head and neck pains, more chest, back, spine, and hip pains, as well as swellings to his body and tongue. Dr. Sweetland did not know what to do about Plaintiff's medical condition. The treatment was "grossly unacceptable, his failure to diagnose, negligence, refusal, delays, indifference to [Plaintiff's] serious medical need." Second Amd Cmp at 4. Plaintiff suffers from "nerve damage which shocks my body throughout the day and night, total joint pain & swellings, leggs [sic], feet and hand pains along with numbness." Id. Due to Dr. Sweetland's neglect, Plaintiff loses sleep, cannot sit for longer than twenty minutes, and has difficulty standing, because of the pain he suffers. Dr. Sweetland was not competent to deal with Plaintiff's illnesses or diagnose his serious medical condition.
Plaintiff seeks declaratory relief and damages.
III. EIGHTH AMENDMENT MEDICAL CLAIM
Plaintiff claims that Dr. Sweetland failed to provide him with adequate medical treatment, in violation of the Eighth Amendment. "[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, 97 S.Ct. 285 (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." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id. 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 at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). "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 v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994)). "'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)). "A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation ...