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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JERRY DOW, No. CIV S-04-1667-GEB-CMK-P

Plaintiff, 

vs. FINDINGS AND RECOMMENDATIONS

W. HUTTO, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983. Pending before the court is plaintiff’s first amended complaint (Doc. 9),

filed on April 18, 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. See 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are

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satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds

upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff

must allege with at least some degree of particularity overt acts by specific defendants which

support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it

is impossible for the court to conduct the screening required by law when the allegations are

vague and conclusory. 

I. BACKGROUND

Plaintiff names the following as defendants: Hutto; Johnson; Peterson; Wedell;

Rianda; Falconer; Grannis; and Latteri. Plaintiff states that he injured his back while at his

prison job and was approved by prison officials for medical treatment, medication for pain, and

rehabilitation services. Plaintiff claims that he has been charged for the medical expenses

associated with his treatment, but that the expenses should be paid by worker’s compensation

insurance. Plaintiff appears to assert that, because he cannot pay, he is being denied medical

care. Plaintiff asserts that each defendant “ . . . had an affirmative duty to correctly assess and

order compliance with those means necessary to provide effective medical treatment as

determined previously by a physician.” 

The court notes that, based on documents attached to the complaint, plaintiff filed

an inmate grievance concerning being charged for treatment, and requested refunds of the

charged amounts. Based on the same document, it also appears that treatment has been provided

and refunds were given. It further appears from the documents that California’s State

Compensation Insurance Fund has accepted financial responsibility for plaintiff’s back injury. 

II. DISCUSSION

The gravamen of plaintiff’s complaint is that medical care was either delayed or

denied. The treatment a prisoner receives in prison and the conditions under which the prisoner

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is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and

unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth

Amendment “. . . embodies broad and idealistic concepts of dignity, civilized standards,

humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates

the Eighth Amendment only when two requirements are met: (1) objectively, the official’s act or

omission must be so serious that it results in the denial of the minimal civilized measure of life’s

necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly

for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth

Amendment, a prison official must have a “sufficiently culpable mind.” See id.

Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

injury or illness, gives rise to under the Eighth Amendment. See Estelle, 429 U.S. at 105; see

also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health needs. 

See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is sufficiently

serious if the failure to treat a prisoner’s condition could result in further significant injury or the

“. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors

indicating seriousness are: (1) whether a reasonable doctor would think that the condition is

worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily

activities; and (3) whether the condition is chronic and accompanied by substantial pain. See

Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 

The requirement of deliberate indifference is less stringent in medical needs cases

than in other Eighth Amendment contexts because the responsibility to provide inmates with

medical care does not generally conflict with competing penological concerns. See McGuckin,

974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

treatment, or interference with medical treatment, may also constitute deliberate indifference. 

See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also

demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

Negligence in diagnosing or treating a medical condition does not, however, give

rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

difference of opinion between the prisoner and medical providers concerning the appropriate

course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

90 F.3d 330, 332 (9th Cir. 1996).

The court concludes that plaintiff’s complaint fails to state a claim under the

Eighth Amendment based on denial or delay of medical treatment. 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 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)); 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, construe the pleading in the light most

favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. See Barnett v. Centoni,

31 F.3d 813, 816 (9th Cir. 1994) (per curiam). In determining whether a complaint states a claim

upon which relief can be granted, the court generally may not consider materials outside the

complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v.

Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents

whose contents are alleged in or attached to the complaint and whose authenticity no party

questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and

upon which the complaint necessarily lies, but which are not attached to the complaint, see Lee

v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of

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which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

1994), except prison regulations, see Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

Here, documents attached to plaintiff’s complaint clearly indicate the following:

(1) plaintiff has received some medical care for his back injury; and (2) the State Compensation

Insurance Fund has agreed to pay for plaintiff’s treatment. Thus, the complaint simply fails to

allege any constitutional violation. 

III. CONCLUSION

Because it does not appear possible that the deficiencies identified herein can be

cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

the entire action. See Lopez, 203 F.3d at 1126, 1131. 

Based on the foregoing, the undersigned recommends that this action be

dismissed.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

after being served with these findings and recommendations, any party may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge's

Findings and Recommendations.” 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).

DATED: November 3, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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