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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROBERT TRACEY SPENCER,

Plaintiff,

v.

CAROL PORTER,

Defendant.

Case No. C06-5310 RJB/KLS

ORDER TO AMEND THE

COMPLAINT 

This civil rights action has been referred to Magistrate Judge Karen L. Strombom pursuant to

Title 28 U.S.C. § 636(b)(1)(B). Plaintiff was given leave to proceed in forma pauperis. The Court,

having reviewed plaintiff's complaint, and the balance of the record contained herein, does hereby

find and ORDER as follows:

The Court declines to order that plaintiff's complaint be served on defendants until he

corrects the deficiencies identified below:

(1) It does not appear plaintiff has alleged a constitutional harm. To state a claim under

 42 U.S.C. § 1983, the defendant must be a person acting under color of state law; and his conduct

must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or

laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other

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ORDER

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grounds by Daniels v. Williams, 474 U.S. 327 (1986). Implicit in the second element is a third

element of causation. See Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 286-87 (1977);

Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert. denied, 449 U.S. 875 (1980). When

a plaintiff fails to allege or establish one of the three elements, his complaint must be dismissed. 

In the present case, Plaintiff’s only claim is a violation of the Eighth Amendment. Plaintiff

alleges that the prison medical staff was negligent in administering his medicine. This allegation is

insufficient to state a section 1983 claim. The Eighth Amendment requires prison officials to take

reasonable measures to guarantee the health and safety of inmates. Hudson v. Palmer, 468 U.S. 517,

526-27 (1984); Farmer v. Brennan, 511 U.S. 825, 834 (1994). An inmate claiming an Eighth

Amendment violation relating to health care must show that the prison officials acted with deliberate

indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The plaintiff

must prove both an objective and a subjective component. Hudson v. McMillan, 503 U.S. 1 (1992);

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). First, the alleged deprivation must be,

objectively, “sufficiently serious.” Farmer, 511 U.S. at 834. A “serious medical need” exists if the

failure to treat a prisoner’s condition would result in further significant injury or the unnecessary and

wanton infliction of pain contrary to contemporary standards of decency. Helling v. McKinney, 509

U.S. 25, 32-35 (1993); McGuckin, 974 F.2d at 1059. Second, the prison officials must be

deliberately indifferent to the risk of harm to the inmate. Farmer, 511 U.S. at 834. An official is

deliberately indifferent to a serious medical need if the official “knows of and disregards an excessive

risk to inmate health or safety.” Id. at 837. Deliberate indifference requires more culpability than

ordinary lack of due care for a prisoner's health. Id. at 835. In assessing whether the official acted

with deliberate indifference, a court's inquiry must focus on what the prison official actually

perceived, not what the official should have known. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th

Cir. 1995). If one of the components is not established, the court need not inquire as to the existence

of the other. Helling, 509 U.S. 25. 

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Prison authorities have “wide discretion” in the medical treatment afforded prisoners. Stiltner

v. Rhay, 371 F.2d 420, 421 (9th Cir. 1971), cert. denied, 387 U.S. 922 (1972). To prevail on an

Eighth Amendment medical claim, the plaintiff must “show that the course of treatment the doctors

chose was medically unacceptable under the circumstances . . . and the plaintiff must show 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. 1996), cert. denied, 519 U.S. 1029. A claim of mere

negligence or harassment related to medical problems is not enough to make out a violation of the

Eighth Amendment. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Simple malpractice,

or even gross negligence, does not constitute deliberate indifference. McGuckin, 974 F.2d at 1059.

Similarly, a difference of opinion between a prisoner-patient and prison medical authorities regarding

what treatment is proper and necessary does not give rise to a § 1983 claim. Franklin, 662 F.2d at

1344; Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). 

(2) Plaintiff is instructed to file an amended complaint curing, if possible, the

 above-mentioned defect by August 1, 2006. If an amended complaint is not timely filed, or if

plaintiff fails to adequately correct the deficiencies identified in this Order, the Court will recommend

dismissal of this action as frivolous.

(3) The Clerk is directed to send plaintiff a copy of this Order and the General Order.

DATED this 3rd, July, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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