United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a California prisoner proceeding pro se with an action for
violation of civil rights under 42 U.S.C. § 1983. On
October 11, 2018, the court screened plaintiff's amended
complaint as the court is required to do under 28 U.S.C.
§ 1915A(a). The court found that plaintiff could proceed
on a claim arising under the Eighth Amendment against
defendant Dr. Truong Bao Le “to the extent plaintiff
alleges [Dr. Le was] at least deliberately indifferent to a
jaw condition suffered by plaintiff by failing to provide
plaintiff with treatment or a referral for treatment.”
(ECF No. 17 at 2.) Dr. Le has filed a motion to dismiss for
failure to state a claim upon which relief can be granted
under Federal Rule of Civil Procedure 12(b)(6).
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[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).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 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.” Iqbal, 556 U.S. at 678.
considering whether a complaint states a claim upon which
relief can be granted, the court must accept the allegations
as true, Erickson v. Pardus, 551 U.S. 89, 93-94
(2007), and construe the complaint in the light most
favorable to the plaintiff, see Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). Review is generally limited to the
complaint. Cervantes v. City of San Diego, 5 F.3d
1273, 1274 (9th Cir. 1993). Of course, the court
“draw[s] on its judicial experience and common
sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679
amended complaint, plaintiff alleges as follows:
Le is a physician at San Joaquin General Hospital.
June 27, 2016, after plaintiff had experienced problems with
his jaw for about four days, plaintiff was transferred to San
Joaquin General from California State Prison, Sacramento
(CDP-Sac.) for a broken jaw. After an x-ray confirmed
plaintiff's broken jaw, plaintiff was seen by Dr. Le. Dr.
Le diagnosed a dislocated and fractured jaw, a contusion and
an abscess. Dr. Le indicated plaintiff's injuries were
non-emergent and cleared plaintiff to return to CSP-Sac.
Plaintiff asserts that during their June 27, 2016 visit, Dr.
Le knew plaintiff was in pain.
Plaintiff returned to San Joaquin General on July 1, 2016 for
surgery on his jaw.
or delay of medical care for a prisoner's serious medical
needs may constitute a violation of the prisoner's Eighth
Amendment rights. Estelle v. Gamble, 429 U.S. 97,
104-05 (1976). A prison official is liable for such a
violation only when the individual is deliberately
indifferent to a prisoner's serious medical needs.
indifference is 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 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Also, the prison official must not only “be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, ” but that
person “must also draw the inference.” Farmer
v. Brennan, 511 U.S. 825, 837 (1994). This
“subjective approach” focuses only “on what
a defendant's mental attitude actually was.”
Id. at 839. A showing of merely negligent medical
care is not enough to establish a constitutional violation.
Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998),
citing Estelle, 429 U.S. at 105-106. A difference of
opinion about the proper course of treatment is not
deliberate indifference, nor does a dispute between a
prisoner and prison officials over the necessity for or
extent of medical treatment amount to a constitutional
violation. See, e.g., Toguchi
v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
Furthermore, mere delay of medical treatment, “without
more, is insufficient to state a claim of deliberate medical
indifference.” Shapley v. Nev. Bd. of State ...