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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KELSEY DRU GLEGHORN, 12 13 14 15 16 17 18 19 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 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 26 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 1 1 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 2 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 3 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 4 allege with at least some degree of particularity overt acts by specific defendants which support 5 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 Plaintiff names the following as defendants: (1) Dr. Sahir Naseer; (2) Dr. Shagufta 9 Yasmeen; and (3) Dr. G. Church. Plaintiff claims that defendants were deliberately indifferent to 10 his serious medical needs when they discontinued opioid medications prescribed after plaintiff’s 11 pre-incarceration back surgery. The treatment a prisoner receives in prison and the conditions 12 under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which 13 prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); 14 Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and 15 idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 16 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See 17 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide 18 prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint 19 v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth 20 Amendment only when two requirements are met: (1) objectively, the official’s act or omission 21 must be so serious such that it results in the denial of the minimal civilized measure of life’s 22 necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly 23 for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth 24 Amendment, a prison official must have a “sufficiently culpable mind.” See id. 25 /// 26 /// 2 1 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 2 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 3 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental 4 health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 5 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 6 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 7 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 8 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 9 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 10 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 11 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 12 The requirement of deliberate indifference is less stringent in medical needs cases 13 than in other Eighth Amendment contexts because the responsibility to provide inmates with 14 medical care does not generally conflict with competing penological concerns. See McGuckin, 15 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 16 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 17 1989). The complete denial of medical attention may constitute deliberate indifference. See 18 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 19 treatment, or interference with medical treatment, may also constitute deliberate indifference. 20 See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also 21 demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 22 Negligence in diagnosing or treating a medical condition does not, however, give 23 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 24 difference of opinion between the prisoner and medical providers concerning the appropriate 25 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 26 90 F.3d 330, 332 (9th Cir. 1996). 3 1 In this case, documents attached to plaintiff’s complaint reveal that plaintiff was 2 examined by prison health care providers prior to discontinuation of opioid medication. The 3 same documents also reflect that plaintiff’s health care providers felt that his current opioid 4 medication was making him too sleepy to meaningfully participate in physical therapy. It was 5 the opinion of these health care providers that plaintiff should be switched to a different pain 6 medication for this reason. Given the foregoing, it is clear that plaintiff’s claim amounts to a 7 difference of medical opinion, which is not cognizable under § 1983. 8 Because it does not appear possible that the deficiencies identified herein can be 9 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 10 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 11 Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action 12 should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to 13 this order may result in dismissal of the action for the reasons outlined above, as well as for 14 failure to prosecute and comply with court rules and orders. See Local Rule 110. 15 IT IS SO ORDERED. 16 17 18 19 DATED: September 18, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 4

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