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1989), superseded by statute as stated in Lopez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 defendants knew or should have known how quickly
esophageal dysplasia can develop into adenocarcinoma.
Plaintiff alleges that Mule Creek State Prison doctors took
five months from January 29, 2015, when the first
esophagogastroduodenoscopy (EGD) was performed and revealed
dysplasia, waiting until June 30, 2015, to perform the second
EGD, which revealed adenocarcinoma (cancer), and then waited
another three months, until October 22, 2015, to perform
surgery. Plaintiff contends that following the first EGD, the
doctor ordered that plaintiff follow up with his primary care
physician to check the biopsy for dysplasia, and if dysplasia
was present, to refer plaintiff to the hospital to perform a
thermal ablation for low grade dysplasia with HALO system.
Plaintiff contends that if the second EGD had been timely
performed, he could have been spared the esophagectomy and
stomach transposition that was required due to the delay.
Plaintiff names as defendants two primary care physicians:
Dr. Horowitz and Dr. Soltanian-Zadeh; plus Dr. Bal, Chief
Medical Executive; Dr. Christopher Smith, Chief Physician and
Surgeon; and J. Lewis, Deputy Director, Policy and Risk
Management Services, California Correctional Health Care
Services (“CCHCS”), Appeal Branch.
Eighth Amendment Standards
Eighth Amendment prohibits the infliction of “cruel and
unusual punishments.” U.S. Const. amend. VIII. The
unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment prohibited by the Eighth Amendment.
Whitley v. Albers, 475 U.S. 312, 319 (1986);
Ingraham v. Wright, 430 U.S. 651, 670 (1977);
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Neither accident nor negligence constitutes cruel and unusual
punishment, as “[i]t is obduracy and wantonness, not
inadvertence or error in good faith, that characterize the
conduct prohibited by the Cruel and Unusual Punishments
Clause.” Whitley, 475 U.S. at 319.
needed to show unnecessary and wanton infliction of pain
“varies according to the nature of the alleged
constitutional violation.” Hudson v.
McMillian, 503 U.S. 1, 5 (1992) (citing
Whitley, 475 U.S. at 320). In order to prevail on a
claim of cruel and unusual punishment, however, a prisoner
must allege and prove that objectively he suffered a
sufficiently serious deprivation and that subjectively prison
officials acted ...