Opinion
Case No. 1:05-CV-00038-REC-LJO-P, (Doc. 1).
February 21, 2006
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE ANY CLAIMS UPON WHICH RELIEF MAY BE GRANTED
I. Findings and Recommendations Following Screening of Complaint
A. Screening Requirement
Plaintiff Gerardo Rivera ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 10, 2005.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957);see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
B. Plaintiff's Claims
Plaintiff is presently housed at Avenal State Prison. Plaintiff is seeking monetary damages and injunctive relief against prison staff for acting with deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. Plaintiff names Dr. Brian Rees, Dr. Perry, Registered Nurse Sedley, Dr. Sacks, Nancy Erly, N. Grannis, and K. Mendoza-Powers as defendants in this action.
1. Medical Care
In his complaint, Plaintiff alleges that he was seen by Defendant Dr. Perry on October 7, 2003, for stress. On October 9, 2003, Defendant Dr. Rees administered Ketoralac/Toradol, and prescribed Naproxyn. Plaintiff alleges he "had an adverse reaction to the combined medications which developed into a massive dermatological hemorrage and papule type infections." (Comp., § IV.) On October 14, 2003, Plaintiff was prescribed Silvadene cream to apply to the rash, and Tylenol for thirty days. In addition, Plaintiff was medically unassigned for thirty days. Plaintiff alleges that he was informed by the Mexican Consular that he had shingles in his chest wall. Plaintiff alleges that from October 7, 2003 until March 17, 2004, he was not diagnosed with shingles. Plaintiff alleges that as a result of the deliberate indifference to his medical needs, he suffered irreparable damage to his skin. Plaintiff also alleges that he has been subject to mental abuse.
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the `minimal civilized measure of life's necessities,'" and (2) "the prison official `acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety."Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment," or in the manner "in which prison physicians provide medical care."McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). "Under this standard, the prison official must not only `be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person `must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "`If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
Plaintiff has not alleged any facts that give rise to a claim for relief under section 1983 for violation of the Eighth Amendment. Plaintiff's exhibits establish that Plaintiff was seen by medical personnel during the time period in question. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to as 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). Rather, to state a claim under section 1983, Plaintiff must allege facts that support a claim that "the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted). Because Plaintiff has not alleged any fact that would support a claim that the named defendants "[knew] of and disregard[ed] an excessive risk to [Plaintiff's] health or safety," Farmer v. Brennan, 511 U.S. at 837, the Court recommends that this claim be dismissed, with prejudice.
2. Inmate Appeals Process
In his complaint, Plaintiff sets forth the chronology of his pursuit of the inmate appeal concerning his medical care. Plaintiff alleges that his appeal was not properly addressed by staff and the response was overdue at several levels of the process.
"[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). "Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the Fourteenth Amendment." Azeez v. DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing prisoner's administrative appeal cannot serve as the basis for liability under a § 1983 action. Buckley, 997 F.2d at 495.
Defendants' actions in responding to Plaintiff's appeal do not give rise to a claim for relief under section 1983. Accordingly, the Court recommends that this claim be dismissed, with prejudice.
C. Conclusion
The Court has reviewed Plaintiff's complaint and finds that it does not state any claims upon which relief may be granted under section 1983. Because Plaintiff's claim stems from his disagreement with the treatment of his medical condition, which is not actionable under section 1983, the Court recommends that this action be dismissed, with prejudice.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.