United States District Court, W.D. Washington, Tacoma
AMENDED  ORDER TO SHOW OR AMEND THE
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's filing of a
proposed civil rights complaint.Plaintiff has been granted
leave to proceed in forma pauperis. In light of the
deficiencies in the complaint discussed herein, however, the
undersigned will not direct service of the complaint at this
time. Plaintiff, though, will be provided the opportunity by
the date set forth below to show cause why the complaint
should not be dismissed or to file an amended complaint.
alleges he had recently been diagnosed with diabetes when he
was booked into Pierce County Jail on March 9, 2017. Dkt. 1,
at 1-4. Plaintiff alleges he was given insulin twice between
March 9, 2017 and April 3, 2017. Id. Plaintiff
indicates that, because he had only recently been diagnosed
with diabetes, he was unaware that blood checks need to be
done at least twice a day and he had no reason to doubt the
treatment given from the Jail's clinic. Id.
Plaintiff contends that on November 6, 2017, he went to an
outside medical provider and learned that he was supposed to
have been receiving insulin and having his blood checked
twice a day. Id. Plaintiff contends Pierce County
Jail clinic has failed to meet his needs medically.
Id. He contends he went approximately 8 months
without insulin. Id. He alleges that on November 10,
2017, he asked a nurse to check his blood sugar level during
a Medpass and that his blood sugar levels were 260 and the
following day were 240 which he indicates is far too high.
Id. Plaintiff indicates the nurse alerted the clinic
who put him on blood sugar check twice a day and insulin.
Id. Plaintiff alleges he now suffers from loss of
quality of eye sight. Id. Plaintiff contends that
when he spoke to Dr. Balderrama, he stated that
plaintiff's blood sugar was “good” and that
he “changed it from the outside doctor's advice to
give insulin.” Id. Plaintiff states that even
though Dr. Balderrama indicated his blood sugar was
“fine” he has been insulin dependent since
bringing to Dr. Balderrama's attention that his sugar
levels were high and not being monitored. Id.
Plaintiff indicates he is now receiving insulin and blood
sugar checks twice a day. Id. Plaintiff further
describes the medical care he has been receiving as
“reckless and wanton.” Id.
Court must dismiss the complaint of a prisoner proceeding
in forma pauperis “at any time if the [C]ourt
determines” that the action: (a) “is frivolous or
malicious”; (b) “fails to state a claim on which
relief may be granted”' or (c) “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. §
1915A(a), (b). A complaint is frivolous when it has no
arguable basis in law or fact. Franklin v. Murphy,
745 F.3d 1221, 1228 (9th Cir. 1984).
the Court may dismiss the complaint as frivolous or for
failure to state a claim, though, it “must provide the
[prisoner] with notice of the deficiencies of his or her
complaint and an opportunity to amend the complaint prior to
dismissal.” McGucken v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992); see also Sparling v. Hoffman
Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988);
Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir.
1987). On the other hand, leave to amend need not be granted
“where the amendment would be futile or where the
amended complaint would be subject to dismissal.”
Saul v. United States, 928 F.2d 829, 843 (9th Cir.
state a claim under 42 U.S.C. § 1983, a complaint must
allege: (1) the conduct complained of was committed by a
person acting under color of state law, and (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). 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).
Inadequate Medical Care
on his complaint, it appears plaintiff seeks to allege a
violation of his Eighth Amendment or Fourteenth Amendment
rights. The Eighth Amendment proscribes deliberate
indifference to a prisoner's serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976). When a claim of inadequate medical
care is brought by a pretrial detainee, the claim arises
under the Due Process Clause of the Fourteenth Amendment.
Clouthier v. County of Contra Costa, 591 F.3d 1232,
1243-44 (9th Cir. 2010); Simmons v. Navajo County,
Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). The claim is
nonetheless properly analyzed under Eighth Amendment
standards. See id.
negligence in diagnosing or treating a medical condition,
without more, does not meet the Eighth Amendment deliberate
indifference standard. Hutchinson v. United States,
838 F.2d 390, 394 (9th Cir.1988). As pled, plaintiff's
complaint fails to support a claim that amounts to more than
mere negligence. At most, plaintiff appears to allege that
the defendant was negligent in monitoring his diabetic needs.
To establish “deliberate indifference, ” a
prisoner must show that a specific defendant or defendants
purposefully ignored or failed to respond to the
prisoner's pain or possible medical need. Id. at
104. A determination of “deliberate indifference”
involves an examination of two elements: (1) the seriousness
of the prisoner's medical need; and (2) the nature of the
defendant's response to that need. McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). A prison
official, accordingly, will not be found deliberately
indifferent to a prisoner's serious medical needs
“unless the official knows of and disregards an
excessive risk to inmate health or safety.” Farmer
v. Brennan, 511 U.S. 825, 837 (1994). “[T]he
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”
Id. Further, a prisoner can make no claim for
deliberate medical indifference unless the denial was
harmful. McGuckin, 974 F.2d at 1060; Shapely v.
Nevada Bd. of State Prison Comm'rs., 766 F.2d 404,
407 (9th Cir. 1985).
allegations in plaintiff's complaint are deficient
because they lack detail and factual support. Specifically,
plaintiff appears to indicate that, at the time of his
incarceration, he had only recently been diagnosed with
diabetes and was himself unaware of his own medical needs
related to his diabetes. It appears from plaintiff's
complaint that he had not been told at the time of his
diagnosis that he required insulin or blood sugar checks
twice a day.
that plaintiff himself was unaware of his own medical needs
it is unclear from plaintiff's complaint to what extent
defendant Balderrama was aware of plaintiff's condition.
Furthermore, while the outside medical provider indicated in
November 2017 that plaintiff should be receiving insulin and
blood sugar checks twice a day, plaintiff offers no facts to
indicate that his diabetic condition was the same when he
became incarcerated in March 2017 or during the intervening
months as it was in November 2017, or that defendant
Balderrama was aware of the severity of his condition and
deliberately ignored or disregarded it.
plaintiff fails to set forth sufficient facts indicating that
defendant Balderrama was aware of a serious medical need, or
that he in fact had such a need prior to November 2017, he
also fails to set forth facts which would support a claim
that defendant Balderrama purposefully ignored or failed to
respond to plaintiff's possible medical need. In fact,
plaintiff appears to indicate that he began receiving regular
insulin and blood ...