Opinion
No. C 02-1218 CRB (PR), (Doc #2)
March 28, 2002
ORDER OF DISMISSAL
Plaintiff, a prisoner at the Santa Clara County Jail in San Jose, California, has filed a pro se civil rights complaint for damages under 42 U.S.C. § 1983 alleging "negligence and medical malpractice." Plaintiff specifically alleges that on or about October 3, 2001, Dr. Adams diagnosed two cysts on his buttocks as "palenidle" cysts and removed them. About a month later, plaintiff saw Dr. Phat because the wounds were not healing properly. Dr. Phat told plaintiff she believed the wounds were healing fine except for a little pus and had a surgeon look at them and concur. Plaintiff alleges that the wounds did not heal and he again saw Dr. Adams, who told him he had a "fistalus" and needed a different surgical procedure. Plaintiff claims that the defendants "misdiagnosed" his cysts and that he is now required "to have another surgery on the same area [due] to [their] neglect and medical malpractice."
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). In order to establish a violation of the Eighth Amendment, a prisoner must show that a defendant purposefully ignored or failed to respond to the prisoner's serious medical needs. See id. at 1060. A claim of negligence related to medical problems is not enough to make out a violation of the Eighth Amendment, however. See Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In fact, neither negligence nor gross negligence is actionable under § 1983 in the prison context.See Farmer v. Brennan, 511 U.S. 825, 835-36 n. 4 (1994); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
A pretrial detainee's medical claims arise under the Due Process Clause; however, the Eighth Amendment serves as the benchmark for evaluating those claims. SSee Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (8th Amendment guarantees provide minimum standard of care for pretrial detainees).
Although regrettable, plaintiff's allegations must be dismissed because they fail to state a claim for violation of the Eighth Amendment. At most, they state 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).
CONCLUSION
For the foregoing reasons, plaintiff's request to proceed in forma pauperis (doc # 2) is DENIED and the complaint is DISMISSED.
The Clerk shall close the file and terminate all pending motions as moot.
SO ORDERED.