The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Plaintiff William Keith proceeds pro se and in forma pauperis in this matter.*fn1 He filed a Second Amended Complaint ("SAC") on December 13, 2012, as ordered by the court. Plaintiff also filed a motion requesting the appointment of counsel to his case on December 14, 2012. Dkt. 20. For the reasons stated herein, plaintiff's motion to request counsel will be denied and his SAC will be dismissed with leave to amend.
The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent litigants in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. As discussed herein plaintiff's SAC fails to state a cognizable § 1983 claim. His request for the appointment of counsel will therefore be denied.
The federal in forma pauperis statute directs the federal courts to dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(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.
To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has 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, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Nevertheless, pro se pleadings are liberally construed, (see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988)), and unless no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal (see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), Franklin, 745 F.2d at 1230).
Here, plaintiff's SAC remains deficient, but he will be granted an additional opportunity to amend the complaint accordingly. The gravamen of plaintiff's allegations is that he was denied proper medical care in violation of his Eighth Amendment rights while he was incarcerated. See Dkt. 19. More specifically, plaintiff alleges that, after injuring his knee while working as an inmate janitor, he was not given an MRI or a "proper diagnosis" by the treating nurse and doctor. Id at 1.
Plaintiff has been advised of the elements of an Eighth Amendment violation under §1983, but fails to sufficiently plead such a violation against any of the named defendants. Plaintiff is reminded of the showing required to state an Eighth Amendment violation on the basis of denied medical care: (1) a serious medical need demonstrated by a showing that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain, and (2) that the defendant's response to the need was deliberately indifferent. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (overruled on other grounds). 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." Jett, 439 F.3d at 1096.
The central problem with the SAC is that plaintiff fails to show how defendants were deliberately indifferent to plaintiff's medical need. Prison officials are deliberately indifferent when they "deny, delay, or intentionally interfere with medical treatment . . . . " Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Mere negligence, however, in diagnosing or treating a medical condition, without more, does not violate plaintiff's Eighth Amendment rights. Id. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
As to both Nurse DeWitt and Dr. Akintola, plaintiff alleges that they were aware of plaintiff's knee injury but colluded with each other to deny plaintiff an "immediate MRI and a proper diagnosis," and that they "d[id] nothing." Id at 2-3. There are many medically legitimate reasons for not ordering an MRI and plaintiff has failed to explain how Dr. Akintola's course of treatment was "medically unacceptable under the circumstances" and that it was chosen with "conscious disregard of an excessive risk to [the plaintiff's] health." See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). A difference of opinion between Dr. Akintola and plaintiff concerning the appropriate course of treatment does not amount to deliberate indifference. Id, Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (prisoner must show that the chosen course of treatment was medically unacceptable under the circumstances). In order to state a cognizable Eighth Amendment claim, plaintiff must explain how not receiving an MRI on his knee was medically unacceptable and the choice not to perform one was made "in conscious disregard of an excessive risk to [plaintiff's] health." See Jackson, 90 F.3d at 332. The SAC fails to make such a showing. Plaintiff further claims that he did not receive a "proper diagnosis" (dkt. 19 at 1) but does not explain what a proper diagnosis would be or that the diagnosis he received was medically unacceptable. Id. One way for plaintiff to make the required showing is to demonstrate how the treatment (or lack thereof) rendered by Nurse DeWitt and Dr. Akintola resulted in further significant injury or pain to plaintiff.
Despite the court's instruction, the SAC continues to include additional allegations against defendants that are unrelated to plaintiff's Eighth Amendment claim. These extraneous claims should not appear in an amended complaint unless they can be pled to state a cognizable claim as discussed below. \\\\\
Nurse DeWitt: The allegation that Nurse DeWitt "used her position" to order an "unwarranted psychological evaluation" of plaintiff is unconnected to plaintiff's claim that he was denied medical care. Dkt. 19 at 2. These ...