Opinion
No. C 02-5777 CRB (PR)
February 20, 2003
ORDER OF DISMISSAL
Plaintiff, a prisoner at Pelican Bay State Prison ("PBSP"), has filed a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that on May 17, 2000 he received prescription eye medication which irritated his eyes. Plaintiff speculates that the medication must have been "contaminated," and claims that allowing a prison guard, rather than a medically trained professional, to dispense and handle the medication amounted to cruel and unusual punishment. Plaintiff also claims cruel and unusual punishment because he was not seen by a doctor until the next day, May 18, 2000.
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 by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en bane). 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 835-36 n. 4; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
Although regrettable, plaintiff's allegations must be dismissed because they do not amount to more than a claim for negligence or gross negligence 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). After all, the attachments to the complaint make clear that plaintiff was seen by a doctor the day after his eyes became irritated, and that the doctor determined that plaintiff likely suffered an allergic reaction to the medication and prescribed him some Benadryl.
Plaintiff's additional allegation that he was placed in a dirty cell briefly after he returned from seeing the doctor does not amount to a constitutional violation either. See, e.g., Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th Cir.), amended, 75 F.3d 448 (9th Cir. 1995) (temporary placement in safety cell that was dirty and smelled bad did not constitute infliction of pain in violation of federal constitution).
CONCLUSION
For the foregoing reasons, plaintiff's request to proceed in forma pauperis under 28 U.S.C. § 1915 (doc #6) is DENIED and the complaint is DISMISSED.The clerk shall enter judgment in favor of defendants, close the file and terminate all pending motions as moot.
SO ORDERED.
JUDGMENT IN A CIVIL CASE
() Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.(X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED.