1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 OSCAR ALEJANDRO CARRILLO, Case No. 23-cv-04046-JSW

8 Plaintiff, ORDER OF DISMISSAL; ON 9 v. PENDING MOTIONS

10 PAUL STEVEN, et al., 11 Defendants. (ECF No. 3, 12)

12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed a civil rights complaint under 42

. Thereafter, he moved to amend the complaint and submitted a proposed amended 15 complaint. Plaintiff is granted leave to proceed in forma pauperis in a separate order. For the 16 reasons discussed below, the case is DISMISSED for failure to state a claim upon which relief 17 may be granted. 18 For good cause appearing, the motion to amend is GRANTED, and the amended complaint 19 is the operative complaint. The motion for appointment of counsel is DENIED. The interests of 20 justice do not require Plaintiff’s representation in this case as it is not particularly complex and 21 Plaintiff is able to adequately articulate and present his claims to the Court. 22 ANALYSIS 23 A. STANDARD OF REVIEW 24 Federal courts must engage in a preliminary screening of cases in which prisoners seek 25 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 27 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 1 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't,

(9th 2 Cir. 1990). 3 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 4 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 5 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon 6 which it rests."'" Erickson v. Pardus,

(2007) (citations omitted). Although 7 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 8 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 9 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 10 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 11 Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint 12 must proffer "enough facts to state a claim for relief that is plausible on its face."

. 13 B. LEGAL CLAIMS 14 Plaintiff sues a five dental and medical care providers. He alleges they incorrectly 15 diagnosed him with an infection in his mouth, broke his jawbone during their extraction of his 16 wisdom teeth, and provided him with pain medication that caused constipation and laxatives that 17 did not satisfactorily address the constipation. He also alleges another doctor disagreed with the 18 opinion of Defendant Dr. Shin that the cause of bruising and swelling was an autoimmune 19 condition as opposed to complications from the tooth extractions. 20 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 21 Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble,

, 22 104 (1976). A prison official is deliberately indifferent if he knows that a prisoner faces a 23 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 24 it. Farmer v. Brennan,

(1994). The prison official must not only “be aware of 25 facts from which the inference could be drawn that a substantial risk of serious harm exists,” but 26 he “must also draw the inference.”

If a prison official should have been aware of the risk, but 27 was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. 1 must be a purposeful act or failure to act on the part of the defendant and resulting harm. 2 McGuckin v. Smith,

(9th Cir. 1992), overruled in part on other grounds by 3 WMX Technologies, Inc. v. Miller,

(9th Cir. 1997) (en banc). Such 4 indifference may appear when prison officials deny, delay or intentionally interfere with medical 5 treatment, or it may be shown in the way in which prison officials provide medical care.

6 Plaintiff’s allegations, at most, plausibly suggest negligence, but not deliberate or 7 purposeful disregards of serious risks to his health. A claim of medical malpractice or negligence 8 is insufficient to make out a violation of the Eighth Amendment. Toguchi v. Chung,

(9th Cir. 2004). None of the inadequate care Plaintiff alleges flows from deliberate 10 delay, denial, or interference with proper care for his dental and medical needs. The allegations 11 show that during the period in question (believe July and November 2002) Plaintiff received 12 multiple examinations, medication, and surgery, he was flown to an outside hospital when his 13 medical needs became emergent, and he was able to communicate his concerns and needs to 14 medical professionals who responded with follow-up and adjustments to his care. This substantial 15 attention to Plaintiff’s medical needs does not, even when liberally construed in Plaintiff’s favor, 16 does not reasonably suggest any deliberate or purposeful failure to provide proper care for 17 Plaintiff’s dental or medical needs. 18 Plaintiff alleges he did not have an infection in his mouth, and Defendants were wrong in 19 insisting he did. “A difference of opinion between a prisoner-patient and prison medical 20 authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662

, 1344 (9th Cir. 1981). Therefore, the alleged difference of opinion, even if Plaintiff 22 was correct and Defendants were wrong, does not support an inference that Defendants were 23 deliberately indifferent or violated his Eighth Amendment rights so as to support a claim under 24 Section 1983. Plaintiff makes no allegation suggesting that Defendants deliberately broke his 25 bone or intentionally disregarded a risk of such a break during surgery; to the contrary, Plaintiff 26 specifically alleges that the break was a result of Defendants’ “negligence.” (ECF No. 13 at 6 ¶ 27 30.) Plaintiff alleges receiving inadequate pain and constipation medication, but he alleges 1 any specific facts that plausibly suggest any deliberate conduct or disregard of a risk of harm. 2 || Lastly, Plaintiffs allegations that that another doctor disagreed with Defendant Dr. Shin about the 3 cause of his bruising and swelling does not establish that Dr. Shin’s opinion, even if it was 4 incorrect, amounted to deliberate disregard for Plaintiff’s needs. See Toguchi,

(a 5 difference of medical opinion between doctors is insufficient, as a matter of law, to establish 6 deliberate indifference). 7 Plaintiff's allegations might plausibly support an inference of at worst negligence by 8 || Defendants but not of deliberate indifference to his dental or medical needs in violation of the 9 || Eighth Amendment. Therefore, Plaintiff's allegations do not state a claim upon which relief may 10 be granted under

for the violation of federal law. 11 CONCLUSION 12 In light of the foregoing, the case is DISMISSED for failure to state a claim upon which 5 13 relief may be granted. The motion for appointment of counsel is DENIED. The motion for leave S 14 to amend is GRANTED. 3 15 The clerk shall enter judgment and close the file. 16 IT IS SO ORDERED. 5 17 Dated: November 20, 2023 1g /} / 19 \ Lt Lous Nts JEFFREY 8. WHITE 20 United fitates D/Atrict Judge 21 22 23 24 25 26 27 28