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Johnson v. Yulit

United States District Court, E.D. California

March 18, 2015

ROBERT D. JOHNSON, Plaintiff,
v.
DR. YULIT, et al., Defendants.

ORDER DISMISSING SECOND AMENDED COMPLAINT AND GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT THIRD AMENDED COMPLAINT DUE IN THIRTY DAYS

GARY S. AUSTIN, Magistrate Judge.

I. Screening Requirement

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 has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).[1]

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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies to section 1983 actions. Swierkewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Fed.R.Civ.P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief..." Fed. R.Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard.... applies only to a plaintiff's factual allegations." Nietze v. Williams, 490 U.S. 319, 330 n. 9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)(quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

This action proceeds on the November 14, 2013, second amended complaint. Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at the Substance Abuse Treatment Facility at Corcoran (SATF), brings this civil rights action against defendant correctional officials employed by the CDCR at SATF. Plaintiff names the following individual defendants: Dr. Yulit, M.D.; E. Chief Medical Officer E. Clark; I. Zamora, Staff Services Manager for California Prison Health Care Services; T. Macias, Chief Executive Officer for Medical Services at CSP Corcoran.

Plaintiff is a diabetic and had been insulin dependent for "over fourteen years." Plaintiff alleges that he has always practiced the "sliding scale" method of controlling his diabetes. Plaintiff alleges that the physicians removed him from the sliding scale method of treatment. Plaintiff filed a grievance regarding the issue. The balance of his allegations relate to the denial of the grievance at various levels of review.

Plaintiff attaches as an exhibit to the amended complaint a copy of Plaintiff's second level appeal along with the response. The response indicates the following.

You were interviewed on 9/20/10 by P. Rouch; NP regarding your sliding scale insulin. You were informed that your blood sugars are well controlled without a sliding scale at this time. The nurse practitioner is a qualified medical professional that is able to make this determination. You may disagree with her decision but it does not mean that she is wrong. It is not necessary that you agree with your treatment. It is necessary that you consent to your treatment. Your medical history indicates that you have refused lab draws, finger stick blood sugar checks and insulin. These actions impact the ability to control your blood sugar levels. Dr. Ulit also determined that your blood sugar levels are well controlled without a sliding scale. You have been presented with the opportunity to discuss your request for the reinstatement of the sliding scale. The basis of the decision to deny the reinstatement of the sliding scale is that your blood sugar levels are well controlled at this time.

A. Eighth Amendment

Under the Eighth Amendment, the government has an obligation to provide medical care to those who are incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). "In order to violate the Eighth Amendment proscription against cruel and unusual punishment, there must be a deliberate indifference to serious medical needs of prisoners.'" Id. (quoting Estelle v. Gamble, 429 U.S. 97. 104 (1976)). Lopez takes a two-prong approach to evaluating whether medical care, or lack thereof, rises to the level of "deliberate indifference." First, a court must examine whether the plaintiff's medical needs were serious. See Id. Second, a court must determine whether "officials intentionally interfered with [the plaintiff's] medical treatment." Id. at 1132.

Plaintiff is advised that he cannot prevail in a section 1983 action where only the quality of treatment is subject to dispute. Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989). Mere difference of opinion between a prisoner and prison medical staff as to appropriate medical care does not give rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). That is the case here. Plaintiff's central allegation is that he disagrees with the diagnosis of medical officials. Plaintiff's own exhibit indicates that competent medical officials decided that the sliding scale method of treatment was no longer appropriate. Plaintiff has not alleged any ...


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