United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. 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).
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.
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).
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. §
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1989), superseded by statute as stated in Lopez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.
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.” Id. 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).
alleges that in September 2016, defendant Wong denied his
request to renew his morphine prescription. Plaintiff alleges
that defendant Wong “weaned me off for an alleged
‘intoxication' that [supposedly] occurred on April
12, 2016.” Plaintiff alleges that defendants Rudas,
Smith and Smiley denied his grievances challenging defendant
Wong's decision to wean him off morphine.
has attached defendant Smith's response to his grievance.
This response states, in relevant part,
Dr. Rudas stated that due to this major ankle surgery with
indwelling hardware you have legitimate chronic pain and the
MCSP PMC approved chronic pain treatment with Morphine ER 15
mg twice daily on September 29, 2015. Dr. Rudas stated you
were found in a state of acute ethanol intoxication on April
16, 2016. Dr. Wong weaned you off of Morphine on September
26, 2016 because of the ethanol incident. Dr. Rudas reviewed
your case with Dr. C. Smith, Chief Physician & Surgeon
(CP & S), and it was determined that Dr. Wong's use
of non-narcotic chronic pain management is appropriate;
therefore, Morphine is denied at this time as it is not
(ECF No. 1 at 15.)
indifference to an inmate's serious medical needs
violates the Eighth Amendment's proscription against
cruel and unusual punishment. See Estelle v. Gamble,
429 U.S. 97, 104 (1976); Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004). To establish an Eighth Amendment
claim on a condition of confinement, such as medical care, a
prisoner-plaintiff must show: (1) an objectively,
sufficiently serious, deprivation, and (2) the official was,
subjectively, deliberately indifferent to the inmate's
health or safety. See Farmer v. Brennan, 511 U.S.
825, 834 (1994).
plaintiff was found in a state of acute ethanol intoxication,
it is unclear how plaintiff is claiming that defendant
Wong's decision to discontinue morphine constituted
deliberate indifference. If plaintiff is claiming that his
intoxication did not justify discontinuation of morphine, he
shall explain this in an amended complaint. It is possible
that plaintiff may be claiming that he was not found in a
state of acute ethanol intoxication, and that the reason for
discontinuing morphine was false. If this is plaintiff's
claim, he shall clarify this is in an amended complaint.
Because the undersigned cannot determine whether plaintiff
has stated a potentially colorable claim for relief, the
complaint is dismissed with leave to amend.
plaintiff chooses to amend the complaint, plaintiff must
demonstrate how the conditions about which he complains
resulted in a deprivation of plaintiff's constitutional
rights. Rizzo v. Goode, 423 U.S. 362, 371 (1976).
Also, the complaint must allege in specific terms how each
named defendant is involved. Id. There can be no
liability under 42 U.S.C. § 1983 unless there is some
affirmative link or connection between a defendant's
actions and the claimed deprivation. Id.; May v.
Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson
v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).