940 F2d 1535 Moody v. Avenenti

940 F.2d 1535

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Minor MOODY, Plaintiff-Appellant,
John AVENENTI, Rod Norrish, Doctor Nash, Ann Beller, Doctor,
Doctor Schnider, Doctor Palacicio, Tony Underwood,
Doctor, Ram Gopalan, Doctor, Defendants-Appellees.

No. 90-15906.

United States Court of Appeals, Ninth Circuit.

Submitted July 29, 1991.*
Decided Aug. 5, 1991.

Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.




Minor Moody, an Arizona state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. Sec. 1983 action against prison authorities. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989), and affirm.


A court's sua sponte dismissal of a complaint before issuance and service of process upon the defendants is construed as frivolous under 28 U.S.C. Sec. 1915(d). Jackson, 885 F.2d at 640. A frivolous claim is one which lacks an arguable basis in either law or fact. Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989). A district court must afford a pro se plaintiff notice of the deficiencies of the complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).


Moody contends that prison authorities deprived him of adequate medical care by refusing to operate on his throat. This contention lacks merit.


"In order to state a cognizable [civil rights] claim, a prisoner must allege acts or admissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106. The indifference to medical needs must be substantial; inadequate treatment due to negligence or inadvertence, or differences in judgment between an inmate and medical personnel does not constitute cruel and unusual punishment. Estelle, 429 U.S. at 106; Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir.1971).


Here, Moody attached to his complaint documents showing he was examined by a physician who determined that Moody did not require surgery. Thus, Moody's allegations amount only to a difference of opinion as to the proper treatment of his medical needs and fail to state a constitutional violation. See Estelle, 429 U.S. at 106; Shields, 442 F.2d at 410. Because Moody's claim fails to state an arguable basis in law or in fact, the district court properly dismissed the action.




The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3