United States District Court, E.D. California
Wilson Plaintiff pro se
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
First Amended Complaint
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
screening the original complaint, the court found that
plaintiff had stated claims for deliberate indifference
against defendants Saukhla, Osman,  and Sanders. ECF No. 12 at
5. His deliberate indifference claims against defendants Fox,
Collins, Bick, Ditomas, Jenden,  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.
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.
Claims for Which a Response Will Be Required
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
Failure to State a Claim
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.
“[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)).
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).
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. ...