United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
DONATO UNITED STATES DISTRICT JUDGE
a state prisoner, has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. Defendants removed this case
from state court and paid the filing fee. Defendants have
also requested that the Court screen the complaint.
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). In its review, the Court must identify any
cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. Id. at 1915A(b)(1), (2).
Pro se pleadings must be liberally construed. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Although a complaint “does
not need detailed factual allegations, . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . . Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer “enough facts to state a claim
to relief that is plausible on its face.” Id.
at 570. The United States Supreme Court has explained the
“plausible on its face” standard of
Twombly: “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that: (1) a right secured by the Constitution or laws
of the United States was violated, and (2) the alleged
deprivation was committed by a person acting under the color
of state law. West v. Atkins, 487 U.S. 42, 48
alleges that he was denied medical treatment and a doctor
verbally harassed him. 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.
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.
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 also
“must also draw the inference.” Id. If a
prison official should have been aware of the risk, but did
not actually know, 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). In addition
“mere delay of surgery, without more, is insufficient
to state a claim of deliberate medical indifference....
[Prisoner] would have no claim for deliberate medical
indifference unless the denial was harmful.”
Shapely v. Nevada Bd. Of State Prison Comm'rs,
766 F.2d 404, 407 (9th Cir. 1985).
of verbal harassment and abuse fail to state a claim
cognizable under 42 U.S.C. § 1983. See Freeman v.
Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in
part on other grounds by Shakur v. Schriro, 514 F.3d
878, 884-85 (9th Cir. 2008); see, e.g.,
Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996),
amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and
assaultive comments by prison guard not enough to implicate
alleges that defendant Branch was verbally hostile to him and
later told him to continue treatment when plaintiff
complained of adverse effects of certain medication.
Plaintiff alleges that defendant Mindoro denied a sleep apnea
treatment device, but the device was later provided in July
2015. Plaintiff also alleges that defendants Posson, Lewis
and Tarrar denied a TENS unit for pain treatment and
a referral for pain management. Though, the TENS unit was
later provided in May 2016. Plaintiff also states that
defendants denied his inmate appeals related to these issues.
Plaintiff is informed that there is no constitutional right
to a prison administrative appeal or grievance system.
See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
complaint is dismissed with leave to amend to provide more
information in light of the legal standards set forth above.
The allegations of verbal harassment and denial of inmate
appeals fail to state a claim, but plaintiff will be allowed
to present more allegations related to these claims. With
respect to the claims of denial of medical care, plaintiff
must present more information how defendants were
deliberately indifferent to his serious medical needs. He
should also address how the claims may proceed in that mere
delay in providing the TENS unit and sleep apnea device,