United States District Court, W.D. Washington, Tacoma
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
a civil rights action brought pursuant to 42 U.S.C. §
1983. Plaintiff Christopher Andrew Bistryski is incarcerated
at the Monroe Correctional Complex-Special Offender Unit
(MCC-SOU). Dkt. 32 at 7, ¶ 29. He sues multiple
defendants for damages and injunctive relief, asserting that
defendants have violated his right to adequate medical care
under the Eighth Amendment. Dkt. 32, pp. 15-16. He is
proceeding with this action pro se and in forma
recent Report and Recommendation, Dkt. 54, the undersigned
recommended that the Court grant two sets of defendants'
motions to dismiss with prejudice under Federal Rule of Civil
Procedure (FRCP) 12(b)(6), Dkt. 38, 49. The undersigned also
recommended that the Court deny two motions by plaintiff for
preliminary injunctive relief, Dkt. 24, 44.
Report and Recommendation did not recommend dismissal of
plaintiff's claims against two defendants, however,
because those defendants-Advanced Registered Nurse
Practitioner (ARNP) Sheryl Allbert and Dr. G. Steven
Hammond-filed an answer to the complaint rather than moving
to dismiss. Dkt. 37.
for the reasons set forth below and in the Report and
Recommendation, Dkt. 54, the undersigned directs plaintiff to
amend the complaint again to address the deficiencies
identified below or to show cause why his claims against
defendants Allbert and Hammond should not be dismissed.
Plaintiff must do so by May 18, 2018.
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)
(emphasis added); 28 U.S.C. § 1915A(a), (b) (a court
“shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in
a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity, ” and dismiss any portion of the complaint
which “fails to state a claim upon which relief may be
granted”); Beenick v. LeFebvre, 684 Fed.
App'x 200, 204 (3d Cir. 2017) (upholding District
Court's sua sponte dismissal of a claim at the
summary judgment stage pursuant to 28 U.S.C. § 1915A and
28 U.S.C. §1997(e).
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). In order for a plaintiff to
successfully defend a motion to dismiss for failure to state
a claim under Fed.R.Civ.P. 12(b)(6), the complaint must
allege “enough facts to state a claim that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). The reviewing court will assume the
plaintiff's factual allegations to be true. Teixeira
v. County of Alameda, 873 F.3d 670, 678 (9th
is facially plausible if it contains facts that would give
the court sufficient information “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Yet, “[c]onclusory allegations
and unreasonable inferences” are not enough for the
plaintiff to survive a motion to dismiss. Sanders v.
Brown, 504 F.3d 903, 910 (9th Cir. 2007). A complaint is
frivolous when it has no arguable basis in law or fact.
Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir.
asserts that defendants Allbert and Hammond are liable under
§ 1983 because they were deliberately indifferent to his
serious medical condition, violating his Eighth Amendment
right to adequate medical care. Dkt. 32, pp. 15-16 (Amended
Complaint). To state such a claim, a plaintiff must allege
facts that support two elements. First, the plaintiff must
show a serious medical need, meaning the defendant's
failure to treat the plaintiff's condition could cause
“further significant injury or the unnecessary and
wanton infliction of pain.” Lemire v. California
Dept. of Corrections & Rehabilitation, 726 F.3d
1062, 1081 (9th Cir. 2013).
the plaintiff must show that the defendant's response to
the need was deliberately indifferent. Lemire, 726
F.3d at 1082. This requires (a) a purposeful act or failure
to respond to the plaintiff's pain or possible medical
need, and (b) harm caused by the indifference. Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The
defendant must know of and disregard an excessive risk to the
plaintiff's health or safety. The defendant “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.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
mere indifference, negligence, or medical malpractice will
not support a deliberate indifference claim. Broughton v.
Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980). A mere
difference of opinion between the prisoner and prison medical
authorities regarding treatment does not constitute
deliberate indifference. Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996). Rather, the defendant must
have chosen a course that was “medically unacceptable
under the circumstances” and done so in conscious
disregard of an excessive risk to the plaintiff's health.
applying the presumption that the plaintiff's allegations
are true, the complaint states that he suffers from ongoing
and worsening “neurological disturbances such as
inability to focus, mental fatigue, short-term memory loss,
general mental fogginess, and strange speech and cognition
errors.” Dkt. 32, pp. 4-5. Plaintiff began noticing
these symptoms in September 2014. Dkt. 32, p. 4. He informed
staff at Stafford Creek Corrections Center (SCCC) about them
in June 2015. Dkt. 32, p. 6. The symptoms continued until
July 2015, when plaintiff was transferred from SCCC to
MCC-SOU. Dkt. 32, p. 8. They then resumed in June 2016. Dkt.
32, p. 8. Plaintiff suspects that his ...