Mills v. Heffner et al

Filing 19

ORDER signed by Magistrate Judge Craig M. Kellison on 08/01/11 ordering this action is dismissed for failure to state a claims. Plaintiff's motion for injunctive relief 2 is denied as moot. The clerk of the court is directed to enter judgment and close this file. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MILLS,

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No. CIV S-10-3225-CMK-P

Plaintiff,

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vs.

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HEFFNER, et al.,

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ORDER

Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c) and no other party has been served or appeared in the action. Pending before the court is

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plaintiff’s complaint (Doc. 1).

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On June 23, 2011, the court directed plaintiff to show cause within 30 days why
this action should not be dismissed for failure to state a claim. The court stated:
Plaintiff names the following as defendants: Heffner,
Heatley, and Hawkins, all of whom are prison doctors, as well as J. Clark
Kelso, the receiver for prison health care. Plaintiff alleges that defendants
have treated him over the past year and, as such, know that he suffers
degenerative disc disease and that his condition is rapidly deteriorating.
Plaintiff adds:

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. . . The Defendants have acted very unreasonably in
treating my condition, amounting to no corrective
operation, which would otherwise satisfy the condition. No
reason whatsoever exists to excuse the ignorance of my
medical condition by said Defendants and their ignoring my
treatment is occurring purposely. Said Defendants know
that I am experiencing continuous pain and are not at all
prescribing me effective pain medication, and have
knowingly reduced the dosages I used to get.

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The treatment a prisoner receives in prison and the
conditions under which the prisoner is confined are subject to scrutiny
under the Eighth Amendment, which prohibits cruel and unusual
punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v.
Brennan, 511 U.S. 825, 832 (1994). Negligence in diagnosing or treating
a medical condition does not, however, give rise to a claim under the
Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 102, 106 (1976).
Moreover, a difference of opinion between the prisoner and medical
providers concerning the appropriate course of treatment does not give rise
to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 330,
332 (9th Cir. 1996).
The court finds that the allegations set forth in the
complaint describe a difference of opinion between plaintiff and prison
doctors as to the appropriate course of treatment. In particular, plaintiff
does not allege the complete denial of medical care. Rather, he states that
the treatment he has received is “unreasonable” and that his medications
are not “effective.” Thus, it is clear that he is in fact receiving some kind
of treatment and medication. Plaintiff’s disagreement with the course of
his treatment does not state a claim.

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Plaintiff was cautioned that failure to file a response to the order to show cause could result in

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dismissal of the action, both for the reasons stated in the order to show cause and for lack of

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prosecution and failure to comply with court rules and orders. See Local Rule 110. To date,

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plaintiff has not filed a response to the order to show cause and the court finds that dismissal of

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the action is appropriate.
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Accordingly, IT IS HEREBY ORDERED that:

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This action is dismissed for failure to state a claim;

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2.

Plaintiff’s motion for injunctive relief (Doc. 2) is denied as moot; and

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The Clerk of the Court is directed to enter judgment and close this file.

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DATED: August 1, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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