Gleghorn v. Naseer et al

Filing 11

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 09/18/17 ORDERING plaintiff shall show cause in writing within 30 days of the date of this order, why this action should not be dismissed for failure to state a claim. (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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KELSEY DRU GLEGHORN,

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No. 2:17-CV-1085-CMK-P

Plaintiff,
vs.

ORDER

SAHIR NASEER, et al.,
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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Plaintiff names the following as defendants: (1) Dr. Sahir Naseer; (2) Dr. Shagufta

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Yasmeen; and (3) Dr. G. Church. Plaintiff claims that defendants were deliberately indifferent to

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his serious medical needs when they discontinued opioid medications prescribed after plaintiff’s

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pre-incarceration back surgery. The treatment a prisoner receives in prison and the conditions

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under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which

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prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993);

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Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and

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idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble,

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429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See

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Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide

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prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint

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v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth

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Amendment only when two requirements are met: (1) objectively, the official’s act or omission

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must be so serious such that it results in the denial of the minimal civilized measure of life’s

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necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly

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for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth

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Amendment, a prison official must have a “sufficiently culpable mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at

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105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental

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health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is

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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant

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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition

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is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily

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activities; and (3) whether the condition is chronic and accompanied by substantial pain. See

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Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).

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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference.

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See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also

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demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).
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In this case, documents attached to plaintiff’s complaint reveal that plaintiff was

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examined by prison health care providers prior to discontinuation of opioid medication. The

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same documents also reflect that plaintiff’s health care providers felt that his current opioid

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medication was making him too sleepy to meaningfully participate in physical therapy. It was

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the opinion of these health care providers that plaintiff should be switched to a different pain

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medication for this reason. Given the foregoing, it is clear that plaintiff’s claim amounts to a

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difference of medical opinion, which is not cognizable under § 1983.

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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action

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should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to

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this order may result in dismissal of the action for the reasons outlined above, as well as for

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failure to prosecute and comply with court rules and orders. See Local Rule 110.

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IT IS SO ORDERED.

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DATED: September 18, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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