Ronald Ramsey v. Alphonso Swaby et al
Filing
8
ORDER TO SHOW CAUSE WHY COURT SHOULD NOT RECOMMEND DENIAL OF REQUEST TO PROCEEDWITHOUT PREPAYMENT OF FILING FEES by Magistrate Judge Alicia G. Rosenberg. IT IS ORDERED THAT Plaintiff shall show cause in writing, by no later than March 14, 2017, why the court should not recommend that the request to proceed without prepayment of fees be denied. Instead of filing a response to this order to show cause, Plaintiff may file a First Amended Complaint that cures the deficiencies identified in this ord er. If Plaintiff chooses to file a First Amended Complaint, it must be filed no later than March 14, 2017. If Plaintiff fails to file a response to this order to show cause or a First Amended Complaint on or before March 14, 2017, this court may recommend that his request to proceed without prepayment of fees be denied. (See Order for details.) (Attachments: # 1 Prisoner Civil Rights Packet) (mp)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
RONALD RAMSEY,
12
Plaintiff,
13
v.
14
DR. ALPHONSO SWABY, et al.,
15
Defendant.
16
17
)
)
)
)
)
)
)
)
)
)
)
)
NO. CV 16-9615-VBF (AGR)
ORDER TO SHOW CAUSE WHY
COURT SHOULD NOT
RECOMMEND DENIAL OF
REQUEST TO PROCEED
WITHOUT PREPAYMENT OF
FILING FEES
18
19
The court orders Plaintiff to show cause on or before March 14, 2017, why
20
this court should not recommend denial of his request to proceed without
21
prepayment of filing fees.
DISCUSSION
22
23
A.
Legal Standard
24
To state a claim under the Eighth Amendment for inadequate medical care,
25
a plaintiff must allege acts or omissions that constitute deliberate indifference to
26
his serious medical needs. See Helling v. McKinney, 509 U.S. 25, 32 (1993);
27
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
28
1
Plaintiff is advised that "[a] difference of opinion between a physician and a
2
prisoner – or between medical professionals – concerning what medical care is
3
appropriate does not amount to deliberate indifference." Hamby v. Hammond,
4
821 F.3d 1085, 1092 (9th Cir. 2016) (quotation and citation omitted). Instead:
5
[t]o show deliberate indifference, the plaintiff "must show that the
6
course of treatment the doctors chose was medically unacceptable
7
under the circumstances" and that the defendants "chose this course
8
in conscious disregard of an excessive risk to the plaintiff's health.
9
Id.; see also Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) ("state prison
10
authorities have wide discretion regarding the nature and extent of medical
11
treatment”).
12
B.
Analysis
13
The complaint’s allegations and exhibits allege differences of opinion
14
between a neurologist at Calipatria state prison, who prescribed shoe inserts in
15
August 2012, and (1) Dr. Cheng-Wu at CSP-LAC, who gave Plaintiff a medical
16
chrono that excluded shoe inserts and assessed Plaintiff as a medium risk patient
17
rather than a high risk patient in November 2012 and (2) Dr. Marcello at CSP-
18
LAC, who gave Plaintiff a medical chrono that did not contain medical devices
19
and assessed Plaintiff as a low risk patient in April 2013. (Compl. at 5-6.)
20
Plaintiff’s complaint about his grievances also allege differences of opinion.
21
Plaintiff alleges that, in his opinion, only a neurologist should have interviewed
22
Plaintiff. According to the complaint, Dr. Swaby conducted an examination at the
23
first level in 2015 that Plaintiff believes was insufficient. Dr. Morris, at the first
24
level, wrongly found no reason to modify the decision regarding shoe inserts
25
based on medical necessity. Dr. Francis claimed to have checked the computer
26
back to 2012 but found no prescription for shoe inserts. P. Finander, the chief
27
medical executive, did not find that Plaintiff had a medical prescription for shoe
28
inserts.
2
1
As discussed above, a difference of opinion between medical professionals
2
– or between Plaintiff and a medical professional – as to appropriate medical care
3
is insufficient to state a claim for deliberately indifferent medical care. Hamby,
4
821 F.3d at 1092; Franklin v. State of Oregon, 662 F.2d 1337, 1344 (9th Cir.
5
1981) (difference of opinion between prisoner and prison medical authorities).
6
Plaintiff must allege sufficient facts to show that the course of treatment doctors
7
chose was medically unacceptable under the circumstances and that defendants
8
chose this course in conscious disregard of an excessive risk to Plaintiff’s health.
9
Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). The complaint’s current
10
allegations are insufficient. E.g., Whitney v. Walker, 631 Fed. Appx. 493, 494
11
(9th Cir. 2016) (affirming dismissal).
12
ORDER
13
For the foregoing reasons, IT IS ORDERED THAT Plaintiff shall show
14
cause in writing, by no later than March 14, 2017, why the court should not
15
recommend that the request to proceed without prepayment of fees be denied.
16
Instead of filing a response to this order to show cause, Plaintiff may file a
17
First Amended Complaint that cures the deficiencies identified in this order. If
18
Plaintiff chooses to file a First Amended Complaint, it must be filed no later than
19
March 14, 2017; bear the docket number assigned in this case; be labeled "First
20
Amended Complaint"; and be complete in and of itself, without reference to the
21
original complaint, or any other pleading, attachment or document. Plaintiff is
22
free to attach additional pages to the form. The Clerk is directed to provide
23
Plaintiff with a blank Central District civil rights complaint form.
24
25
26
27
28
3
1
If Plaintiff fails to file a response to this order to show cause or a First
2
Amended Complaint on or before March 14, 2017, this court may recommend
3
that his request to proceed without prepayment of fees be denied.
4
5
6
DATED: February 14, 2017
ALICIA G. ROSENBERG
United States Magistrate Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?