United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with an action filed pursuant to 42 U.S.C. § 1983.
Pursuant to the court's order filed May 14, 2019, this
action now proceeds on plaintiff's second amended
plaintiff was previously informed, the 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. §
district court must construe a pro se pleading
“liberally” to determine if it states a claim
and, prior to dismissal, tell a plaintiff of deficiencies in
his complaint and give plaintiff an opportunity to cure them.
See 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.”). While detailed factual allegations are not
required, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Plaintiff must set forth
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678
(quoting Bell Atlantic Corp., 550 U.S. at 570).
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
“probability requirement, ” but it asks for more
than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.
Iqbal, 556 U.S. at 678 (citations and quotation
marks omitted). Although legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations, and are not entitled to the assumption of truth.
Id. at 1950.
appended to a complaint are a part thereof for all purposes.
See Fed.R.Civ.P. 10(c); see Wilhelm v.
Rotman, 680 F.3d 1113, 1116 n.1 (9th Cir. 2012)
(exhibits attached to the complaint may be considered to
decide whether dismissal is proper); Iqbal, 556 U.S.
at 678 (2009) (conclusory allegations not supported by
factual allegations do not state a plausible claim).
Plaintiff's Second Amended Complaint
again alleges that defendant doctors were deliberately
indifferent to plaintiff's serious medical needs by
delaying the diagnosis and treatment of his prostate cancer.
Plaintiff alleges that he continues to suffer penile
tenderness, bleeding ulcers, bloody bowels and urine, as well
as urination problems. Plaintiff claims the defendants
misdiagnosed plaintiff in 2005, 2006, and through each PSA
test, and denied him the correct treatment in a timely
manner. (ECF No. 41 at 6.) Plaintiff avers that he has been
permanently damaged from “reproduction of life.”
(ECF No. 41 at 9.) Plaintiff did not set forth his requested
relief. (ECF No. 41.)
Eighth Amendment Standards
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) that “the defendant's
response to the need was deliberately indifferent.”
Id. (quoting McGuckin v. Smith, 974 F.2d
1050, 1059-60 (9th Cir. 1992) (citation and internal
quotations marks omitted), overruled on other grounds WMX
Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997)
applying this standard, the Ninth Circuit has held that
before it can be said that a prisoner's civil rights have
been abridged, “the indifference to his medical needs
must be substantial. Mere ‘indifference,'
‘negligence,' or ‘medical malpractice'
will not support this cause of action.” Broughton
v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.
1980) (citing Estelle, 429 U.S. at 105-06).
“[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. Medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner.” Estelle, 429 U.S. at 106; see
also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th
Cir. 1995). 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). Even gross negligence is
insufficient to establish deliberate indifference to serious
medical needs. See Wood v. Housewright, 900 F.2d
1332, 1334 (9th Cir. 1990). Additionally, a prisoner's
mere disagreement with diagnosis or treatment does not
support a claim of deliberate indifference. Sanchez v.
Vild, 891 F.2d 240, 242 (9th Cir. 1989). To establish
that a difference of opinion rises to the level of deliberate
indifference, plaintiff “must show that the course of
treatment the doctors chose was medically unacceptable under
the circumstances.” Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996) (citation omitted).
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).
in providing medical care may manifest deliberate
indifference. Estelle, 429 U.S. at 104-05. To
establish a claim of deliberate indifference arising from a
delay in providing care, a plaintiff must show that the delay
was harmful. See Berry v. Bunnell, 39 F.3d 1056,
1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;
Wood, 900 F.2d at 1335; Shapley v. Nevada Bd. of
State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.
1985). In this regard, “[a] prisoner need not show his
harm was substantial; however, such would provide additional
support for the inmate's claim that the defendant was
deliberately indifferent to his needs.” Jett,
439 F.3d at 1096; see also McGuckin, 974 F.2d at
1060. In addition, a physician need not fail to treat an
inmate altogether in order to violate that inmate's
Eighth Amendment rights. Ortiz ...