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Gibbs v. Carson

United States District Court, Ninth Circuit

May 16, 2013

KENNETH GIBBS, Plaintiff,
v.
CARSON, et al., Defendant.

ORDER SERVING COGNIZABLE CLAIMS (Doc. # 15)

THELTON E. HENDERSON, District Judge.

Plaintiff Kenneth Gibbs, an inmate at Pelican Bay State Prison (PBSP) in Crescent City, California, commenced this action on February 26, 2013 by submitting a letter to the Court. Subsequently, Plaintiff properly filed a complaint on the Court's civil rights form. On April 24, 2013, the Court issued an Order dismissing the complaint with leave to amend and, on May 15, 2013, Plaintiff filed an amended complaint. The amended complaint is now before the Court for initial screening pursuant to 28 U.S.C. § 1915A.

I

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). Pleadings filed by pro se litigants, however, must be liberally construed. Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica Police Dep't. , 901 F.2d 696, 699 (9th Cir. 1990).

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).

Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. Leer v. Murphy , 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg , 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of § 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer , 844 F.2d at 633. The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. Id . Sweeping conclusory allegations will not suffice; the plaintiff must instead "set forth specific facts as to each individual defendant's" deprivation of protected rights. Id. at 634.

II

A

In the April 25, 2013 Order, the Court noted that Plaintiff's allegations could be sorted into three main categories of constitutional violations: (1) deliberate indifference to treat his serious medical needs; (2) retaliation for filing grievances and lawsuits; and (3) placement into administrative segregation (ad seg) upon false charges and without due process. The Court explained that, as written, the complaint did not state claims upon which relief could be granted and indicated how Plaintiff could remedy the deficiencies. The Court also noted that the three types of claims were improperly joined and instructed Plaintiff to file, in an amended complaint, the claims he wished to proceed with in this case and, if he wished, to file a new complaint containing the unrelated claims. In his amended complaint, Plaintiff realleges all three categories of violations. In all, Plaintiff's amended complaint contains over 20 claims and names 40 individuals as Defendants. In the interest of judicial efficiency, the Court will address all these claims in this Order.

B

Plaintiff attempts to state violations based on deliberate indifference to his serious medical needs in claims 1, 2, 4, 8, 9, and 15.

Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble , 429 U.S. 97, 104 (1976); McGuckin v. Smith , 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller , 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. Id. at 1059.

A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id . The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a "serious" need for medical treatment. Id. at 1059-60.

A prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan , 511 U.S. 825, 837 (1994). The prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, " but he "must also draw the inference." Id . 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. Gibson v. County of Washoe , 290 F.3d 1175, 1188 (9th Cir. 2002). "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon , 662 F.2d 1337, 1344 (9th Cir. 1981). A claim of medical malpractice or negligence is insufficient to make out a violation of the Eighth Amendment. Toguchi v. Chung , 391 F.3d 1051, 1060-61 (9th Cir. 2004); Hallett v. Morgan , 296 F.3d 732, 744 (9th Cir. 2002).

In claim 1, Plaintiff claims that Dr. Evans "neglected to transfer Plaintiff to a hospital when Plaintiff was infected with an incurable and debilitating disease." Plaintiff alleges that, after he told Dr. Evans that he was passing blood through his rectum and requested treatment for his stomach, Dr. Evans scheduled Plaintiff for a colonoscopy to check for prostate cancer. The colonoscopy showed that Plaintiff was infected with herpes.

These allegations do not show that Dr. Evans was deliberately indifferent to Plaintiff's medical needs. On the contrary, they show that Dr. Evans was responsive to Plaintiff's medical needs by immediately scheduling him for a colonoscopy to check for suspected prostrate cancer based on Plaintiff's reported symptoms. Therefore, this claim against Dr. Evans is dismissed.

In claim 2, Plaintiff claims that Dr. Feimer misdiagnosed his herpes as food allergies and ulcers. A misdiagnosis might amount to neglect, but does not constitute deliberate indifference to a serious medical need. Therefore, this claim against Dr. Feimer is dismissed.

In claim 4, Plaintiff alleges that he had an outbreak of blisters inside his mouth and requested treatment from Dental Assistant Tupman on three occasions and Ms. Tupman refused to treat him each time. These allegations, liberally construed, state a claim of deliberate indifference against Ms. Tupman.

In claims 8 and 9, Plaintiff alleges that he requested treatment from Dr. Crinklaw and Dr. Malo-Clines for his herpes and that these doctors refused to treat him. Liberally construed, these ...


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