This 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.
Plaintiff 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.
The 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).
Before 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. 1991).
To 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).
Based 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.
Mere 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).
The 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.
Given 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.