1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

THOMAS ALLEN GORDON,

Plaintiff,

v.

LARRY MALCOLM,

Defendant.

Case No. C05-5838RBL

REPORT AND

RECOMMENDATION

Noted for April 14, 2006

This § 1983 Civil Rights matter has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR

4. This matter comes before the court on plaintiff’s failure to cure certain deficiencies in his complaint. For

the reasons set forth below, the undersigned recommends that the Court dismiss this matter for failure to

state a cognizable claim.

DISCUSSION

A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d

1221, 1228 (9th Cir. 1984). When a complaint is frivolous, fails to state a claim, or contains a complete

defense to the action on its face, the court may dismiss an in forma pauperis complaint before service of

process under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 575 (9th Cir. 1987) (citing Franklin

v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)). A plaintiff must allege a deprivation of a federally

protected right in order to set forth a prima facie case under 42 U.S.C. §1983. Baker v. McCollan, 443

U.S. 137, 140 (1979). In order to state a claim under 42 U.S.C. § 1983, a complaint must allege that (l)

Case 3:05-cv-05838-RBL Document 7 Filed 03/24/06 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 2

the conduct complained of was committed by a person acting under color of state law and that (2) the

conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the

United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v.

Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if

both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert.

denied, 478 U.S. 1020 (1986). Recently the Ninth Circuit held that dismissal of prisoner's deficient

complaints is mandatory under the PLRA. See Lopez v. Smith, 1998 WL 774639 (9th Cir., Nov. 9, 1998).

On January 23, 2006, this court reviewed plaintiff’s complaint and issued an order directing plaintiff

to cure certain deficiencies. See Doc. 5. Specifically, the court explained that plaintiff did not allege facts

showing or demonstrating a constitutional harm and plaintiff was instructed to file an amended complaint

curing, if possible, the above-mentioned defects by February 20, 2006. Plaintiff was warned that his

failure to cure or to respond appropriately could result in dismissal of this action as frivolous pursuant to

28 U.S.C. § 1915, and such dismissal would count as a “strike” under 28 U.S.C. § 1915(g).

Plaintiff filed an amended complaint, attempting to cure the defects in his original complaint, on

February 13, 2006. After carefully reviewing the Amended Complaint, the court finds plaintiff has failed to

allege facts to support a cognizable claim. Specifically, plaintiff seeks compensatory and punitive damages

based on the allegation that defendant violated his right to adequate medical care when he denied

plaintiff’s request for a second or follow-up hepatitis test.

 As stated in the court’s previous order, prison officials violate the Eighth Amendment when they

are deliberately indifferent to the serious medical needs of convicted prisoners. Estelle v. Gamble, 429

U.S. 97, 104 (1976). To state such a claim, a prisoner must show that the official knew of and disregarded

a substantial risk of serious harm to his health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 

Allegations of medical malpractice and gross negligence are insufficient to establish deliberate indifference. 

Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 

Here, plaintiff has not alleged or shown the court that defendants was acting deliberately different

to a substantial risk of serious harm. Hepatitis is a significant medical condition, but plaintiff does not

suffer from the disease. Defendant’s response to plaintiff’s request for testing indicates that plaintiff had

previously tested negative for the disease and since that time he had been housed in a segregation unit, and

Case 3:05-cv-05838-RBL Document 7 Filed 03/24/06 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 3

thus, plaintiff had not been at risk for exposure to the disease or put in any high risk situation to contract

the disease. Plaintiff does not show that defendant’s refusal to give him a follow up test for the disease has

exposed him to a substantial risk of serious harm. 

 Similarly, the court finds that plaintiff has not adequately alleged facts to support a claim for

mental damages. Plaintiff does not allege any facts showing that he has been damaged or actually suffered

from any physical injury. Under 42 U.S.C. § 1997(e), no federal civil action may be brought by a prisoner

for mental or emotional injury suffered while in custody without a prior showing of physical injury. A de

minimis physical injury is not sufficient to support a claim for mental or emotional suffering. Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

CONCLUSION

Because plaintiff fails to state a cognizable § 1983 constitutional claim, the Court should DISMISS

this case as frivolous. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil

Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also

Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. 

Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is

directed to set the matter for consideration on April 14, 2006, as noted in the caption. 

DATED this 24th day of March, 2006.

/s/ J. Kelley Arnold J. Kelley Arnold

United States Magistrate Judge

Case 3:05-cv-05838-RBL Document 7 Filed 03/24/06 Page 3 of 3