Opinion
No. C 02-3694 CRB (PR), (Doc #1)
August 5, 2002
ORDER OF DISMISSAL
Plaintiff, a prisoner at the Alameda County Jail, Santa Rita Facility, has filed a pro se civil rights complaint for damages under 42 U.S.C. § 1983. Plaintiff alleges that on March 26, 2002, he "put in" a medical form for a spider bite on his leg and was seen by Dr. Ott the next day. Dr. Ott confirmed that it was a spider bite and prescribed Benadryl two times a day. Plaiiitiff took Benadryl for a few days, but on Saturday, March 30, 2002 requested to see a doctor because his leg had "swollen up very big." On Monday, April 1, 2002, plaintiff was seen by Dr. Potter, who put him on antibiotics for an extended period of time because plaintiff had developed a serious infection from the spider bite. Plaintiff claims he would not have gotten a serious infection if he had been given the correct medication the first time.
Plaintiff seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police-Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege-two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies. Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official is deliberately indifferent if he knows that a. prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Neither negligence nor gross negligence is actionable under § 1983 in the prison context. See id. at 83 5-36 n. 4; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
Although regrettable, plaintiffs allegations must be dismissed because they do not amount to more than a claim for negligence or medical malpractice not cognizable under § 1983. See e.g., Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in claims stemming from alleged delays in administering pain medication, treating broken nose and providing replacement crutch, because claims did not amount to more than negligence); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (finding that isolated occurrences of neglect may constitute grounds for medical malpractice but do not rise to level of unnecessary and wanton infliction of pain). Plaintiff may be able to proceed with a medical malpractice claim in state court, but not here.
CONCLUSION
For the foregoing reasons, plaintiffs request to proceed in forma pauperis (doc # 1) is DENIED and the complaint is DISMISSED.
The Clerk shall close the file and terminate all pending motions as moot.
SO ORDERED.