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Wilson v. Fox

United States District Court, E.D. California

November 17, 2017

FRED WILSON, Plaintiff,
v.
ROBERT FOX, et al., Defendants.

          Fred Wilson Plaintiff pro se

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a former state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983, has filed a first amended complaint. Rule 15 of the Federal Rules of Civil Procedure provides that “[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a responsive pleading.” Fed.R.Civ.P. 15(a)(1)(B). Defendants served their answer on October 23, 2017. ECF No. 21. The first amended complaint filed on November 13, 2017, was therefore permissible under Rule 15.

         I. First Amended Complaint

         Although plaintiff is not currently incarcerated, he is proceeding in forma pauperis (ECF No. 12 at 7) and the amended complaint is therefore subject to screening under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), the court must dismiss a complaint or portion thereof if the plaintiff has raised claims that are “frivolous or malicious, ” 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.

         Upon screening the original complaint, the court found that plaintiff had stated claims for deliberate indifference against defendants Saukhla, Osman, [1] and Sanders. ECF No. 12 at 5. His deliberate indifference claims against defendants Fox, Collins, Bick, Ditomas, Jenden, [2] and Lewis were dismissed with leave to amend. Id. at 4. Plaintiff was given the option to proceed on his cognizable claims or to try and amend the complaint. Id. at 5-6. He chose to proceed on the screened original complaint. ECF No. 13. Plaintiff has now filed a first amended complaint as permitted by Rule 15. ECF No. 25.

         In the first amended complaint, plaintiff names the same defendants as in his original complaint, with the exception of Lewis, who has not been identified as a defendant in the amended complaint. ECF No. 25 at 1-2. In addition to his original Eighth Amendment claims, plaintiff also asserts claims under 42 U.S.C. §§ 1985 and 1986. Id. at 3-9.

         A. Claims for Which a Response Will Be Required

         Plaintiff's Eighth Amendment claims against Saukhla, Osman, and Sanders are nearly identical to the claims in the original complaint and are therefore cognizable as set forth in the original screening order (ECF No. 12 at 5). Defendants Saukhla, Osman and Sanders will therefore be required to respond to these claims.

         B. Failure to State a Claim

         For the reasons set forth below, plaintiff's § 1985 and § 1986 claims against Saukhla, Osman and Sanders, as well as all of his claims against Fox, Collins, Bick, Ditomas and Jenden, fail to state claims for relief.

         i. Deliberate Indifference

          “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.'” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff to show (1) “a ‘serious medical need' by demonstrating that ‘failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain, '” and (2) “the defendant's response to the need was deliberately indifferent.” Id. (some internal quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).

         Deliberate indifference is established only where the defendant subjectively “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate indifference can be established “by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known”) is insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 (1994) (citations omitted).

         A difference of opinion between an inmate and prison medical personnel-or between medical professionals-regarding appropriate medical diagnosis and treatment is not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. ...


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