United States District Court, N.D. California
ORDER OF SERVICE
CHARLES R. BREYER, District Judge.
Plaintiff, a prisoner at the Correctional Training Facility (CTF) in Soledad, California, has filed a pro se Second Amended Complaint (SAC) for damages under 42 U.S.C. § 1983 alleging that Dr. Rosana Lim Javate improperly denied and delayed his treating physicians' referrals for bunion surgery, and that L. D. Zamora, the chief of California Correctional Health Care Services, largely ignored his pleas for intervention. Plaintiff also names as defendants Warden M. Spearman and California Attorney General Kamala D. Harris.
Plaintiff also requests appointment of counsel under 28 U.S.C. § 1915.
A. Standard of Review
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). Pro se pleadings must be liberally construed, however. 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).
B. Legal Claims
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). 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." McGuckin v. Smith , 974 F.2d 1050, 1059 (9th Cir. 1992) (citing Estelle , 429 U.S. at 104), overruled in part on other grounds by WMX Technologies, Inc. v. Miller , 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official is "deliberately indifferent" if he 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).
Liberally construed, plaintiff's allegations that Dr. Rosana Lim Javate improperly denied and delayed his treating physicians' referrals for bunion surgery, and that Chief L. D. Zamora largely ignored his pleas for intervention, appear to state a cognizable § 1983 claim for deliberate indifference to serious medical needs against these two defendants and will be ordered served on them. But Warden M. Spearman and California Attorney General Kamala D. Harris are dismissed because plaintiff sets forth no allegations against them other than their being responsible for the actions or omissions of their subordinates and it is well established that there is no liability under § 1983 solely because one is responsible for the actions or omissions of another. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989).
C. Request for Appointment of Counsel
Plaintiff's request for appointment of counsel is DENIED for lack of exceptional circumstances. See Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon , 789 F.2d 1328, 1331 (9th Cir. 1986).
For the foregoing reasons and for good ...