Opinion
No. C 02-1815 MMC (PR)
June 5, 2002
ORDER OF DISMISSAL
Plaintiff Richard Rios, an inmate at the Santa Clara County Jail, has filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. By separate order, he has been granted leave to proceed in forma pauperis.
BACKGROUND
Plaintiff alleges that he spilled gravy from his meal tray onto his hand and caused a second degree burn. Plaintiff told a prison guard, who advised him to run cold water over it. Over the next several days, plaintiff sought treatment from jail nurses as the burn was painful. The nurses told plaintiff that his burn was not an emergency requiring immediate attention. On the fourth day following the accident, a nurse determined that plaintiff's burn had begun to become infected, at which time the burn was treated by a doctor.
DISCUSSION
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 191 5A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief See id. § 191 5A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under § 1983, a plaintiff must allege two essential 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 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff claims that the failure to treat his burn sooner violated his constitutional right to adequate medical care. Deliberate indifference to 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). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. See McGuckin, 974 F.2d at 1059. In order for deliberate indifference to be established, there must be a purposeful act or failure to act on the part of the defendant and resulting harm. See id. at 1060. 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. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). A claim of mere negligence related to medical problems is not enough to make out a violation of the Eighth Amendment, nor is "a difference of opinion between a prisoner-patient and prison medical authorities regarding treatment." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
Plaintiff's allegations do not state a claim because the Eighth Amendment does not require that he receive more immediate medical treatment. According to plaintiff, he was seen by several nurses who assessed his condition and found that it was not an emergency, and after four days he was examined and treated by a doctor. Plaintiff does not make any allegation or complaint that the doctor's treatment was inadequate; his complaint is simply that the treatment was not prompt enough. The delay of four days in receiving treatment by a doctor for a second degree burn, even if it constitutes negligence, does not rise to the level of deliberate indifference to plaintiff's medical needs.Compare, e.g., Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (holding delays in administering pain medication, treating broken nose and providing replacement crutch did not constitute deliberate indifference); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (holding repeated failures to satisfy requests for aspirins and antacids to alleviate headaches, nausea and pain does not rise to level of unnecessary and wanton infliction of pain); Anthony v. Dowdle, 853 F.2d 741, 743 (9th Cir. 1988) (holding no constitutional violation alleged where prison warden and work supervisor failed to provide prompt and sufficient medical care). The allegations in the complaint establish that plaintiff was seen by nurses and was then treated by a doctor. Plaintiff's complaint that the treatment was not sufficiently prompt does not rise to the level of deliberate indifference necessary to establish a constitutional violation. Accordingly, the complaint fails to state a claim under § 1983. There is no indication that the claims could be fairly cured by amendment, as plaintiff's factual allegations establish the absence of a constitutional violation. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
CONCLUSION
For the reasons expressed, plaintiff's claims under § 1983 are DISMISSED.
All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED Plaintiff's claims under 1983 are DISMISSED.
All pending motions are TERMINATED.