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noting that a cane was prescribed instead of a wheelchair because the lack of exercise associated with the wheelchair could be detrimental to plaintiff's condition
Summary of this case from Lesage v. Spencer-FaireOpinion
No. C 02-5648 CRB (PR)
December 6, 2002
ORDER OF DISMISSAL
Plaintiff, a prisoner at Salinas Valley State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that Dr. Peter Bressler refuses to give him a wheelchair to get around despite the fact that he has osteoporosis and it is painful for him to walk.
Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Here, the attachments to the complaint make clear that Dr. Bressler and other prison medical staff confirmed that plaintiff has osteoporosis and osteodysplasia, but determined that he is able to walk slowly with a cane and that a wheelchair is not medically indicated at this time. They concluded that the daily exercise plaintiff gets, even short walks around the day room, is beneficial to his condition. In their medical opinion, a wheelchair (or rather the lack of exercise associated with it) could be detrimental to plaintiffs condition.
Plaintiffs "difference of opinion" with Dr. Bressler and other prison medical staff over the appropriateness of a wheelchair does not amount to a constitutional claim for deliberate indifference. See Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) ("A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim."); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference).
To whatever extent plaintiff claims that Dr. Bressler also refuses to give him a walker and a referral to a neurologist, those claims are clearly unexhausted (plaintiff concedes as much) and therefore dismissed without prejudice. See 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 305 F.3d 1033, 1045-46 (9th Cir. 2002).
CONCLUSION
For the foregoing reasons, plaintiffs request to proceed in forma pauperis is DENIED and the complaint is DISMISSED.The Clerk shall close the file and terminate all pending motions as moot.