United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
By order filed February 23, 2015, plaintiff was directed to submit a certified copy of his trust account statement. On March 4, 2015, plaintiff filed his trust account statement.
Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, 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, 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
In his first claim, plaintiff alleges medical malpractice based on defendant LVN Bello's alleged wrongful action in cleaning wax from plaintiff's ear, allegedly resulting in plaintiff suffering bleeding from his ear for seven days, pain, and lost hearing. (ECF No. 1 at 4-5.) Plaintiff contends that an unidentified custody officer ordered plaintiff to sit through the painful procedure despite plaintiff's cries of pain and request to terminate the procedure. Plaintiff alleges that "all the doctors at Susanville failed to provide adequate health care services, " refused to timely schedule an ENT referral or to prescribe medication for plaintiff's pain, hearing loss, vertigo and equilibrium dysfunction. On June 23, 2014, plaintiff alleges that defendant Officer Barnes denied plaintiff access to medical care when plaintiff became disoriented. Plaintiff alleges that defendant Daily forced plaintiff to return to work despite plaintiff's persistent ear infections, hearing loss, pain, and equilibrium problem. Plaintiff contends that defendant Daily and defendant Officer Johnson refused to call an ambulance for plaintiff when he complained he was very dizzy and in pain.
Plaintiff states he has spoken with defendants Dr. Reed, Dr. Pomazal and Chief Medical Executive Dr. Swingle regarding a referral to an ENT, and they all stated plaintiff was scheduled, but later admitted that there was no contracted ENT. Upon his transfer to the California City Institution, plaintiff states he requested a follow-up appointment for his persistent ear infections, medications for pain, hearing loss, and equilibrium dysfunction. Plaintiff alleges that Dr. Ho submitted a request for an ENT referral, which was denied, but Dr. Ho re-submitted the request. On December 11, 2014, plaintiff was interviewed by Dr. Kitt via telemedicine and diagnosed with chronic otitis externa and temporomandibular joint syndrome of the jaw, and recommended an site office visit to evaluate plaintiff's illness. Plaintiff claims the infection has now spread to his jaw. Plaintiff alleges that Chief Medical Executive Ross "continue[s] to inflict unnecessary wanton of injuries, that shock normal conscience [and impose] cruel and unusual punishment, " (ECF No. 1 at 7), but plaintiff includes no specific factual allegations as to Dr. Ross.
In his second claim, plaintiff appears to claim that he was wrongfully assigned a P-Code classification which allegedly increases his risk assessment, apparently depriving him of access to the early release program designed to reduce the prison population or increasing the duration of his incarceration. Plaintiff seeks monetary damages, as well as injunctive relief requiring Governor Brown to improve medical care and "not inflict injury, cruel and unusual punishment." (ECF No. 1 at 9.)
To the extent plaintiff seeks prospective injunctive relief to improve medical care for all inmates, such claim is barred by Plata v. Schwarzenegger, No. C 01-1351 THE (N.D. Cal.), a class action suit concerning the adequacy of medical care provided throughout the California state prison system.
Plaintiff's allegations in his first claim, based on medical malpractice, are insufficient to state a civil rights claim. While the Eighth Amendment of the United States Constitution entitles plaintiff to medical care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to an inmate's serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff "must show (1) a serious medical need by demonstrating that failure to treat [his] 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." Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is shown by "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm caused by the indifference." Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. Mere indifference, ' negligence, ' or medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06.)
Because plaintiff's allegations are based on negligence, such allegations fail to rise to the level of deliberate indifference. However, it may be that plaintiff can amend his complaint to allege facts demonstrating a particular defendant acted with the culpable state of mind. Thus, plaintiff is granted leave to amend. But plaintiff must specifically allege facts ...