Kenneth Lee Krause, Petitioner-appellant, v. Kathy Finch, et al., Respondents-appellees, 953 F.2d 1387 (9th Cir. 1992)

MEMORANDUM^** 

Kenneth Lee Krause, a Nevada state prisoner, appeals pro se from the district court's dismissal pursuant to Fed. R. Civ. P. 12(b) (6) of his 42 U.S.C. § 1983 action challenging the medical care he received during successful treatment of a brain aneurysm. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court's dismissal for failure to state a claim. Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). Dismissal is appropriate only if the plaintiff "can prove no set of facts which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). The court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll, 809 F.2d at 1448.

The district court dismissed Krause's eighth amendment claim, holding that the defendants were acting in their official capacities and thus could not be sued for damages under Will v. Michigan Dep't of State Police, 109 S. Ct. 2304, 2311-12 (1989). Neither Will nor the eleventh amendment, however, bars actions for damages against officials in their individual capacities. See Hafer v. Melo, 112 S. Ct. 358, 362-65 (1991). Although Krause did not specify in his complaint that he was suing the defendants in their individual capacities, he sought damages for the alleged misconduct, which we construe as an action against the defendants in their individual capacities. See Price v. Akaka, 928 F.2d 824, 828-29 (9th Cir. 1991).

Nevertheless, we affirm the district court's dismissal because Krause does not state an eighth amendment claim for the allegedly inadequate medical treatment.¹ 

"In order to state a cognizable [eighth amendment] claim a prisoner must allege acts or omissions sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The indifference to medical needs must be substantial; a constitutional violation is not established by negligence or "an inadvertent failure to provide adequate medical care." Id. at 105-06; see Anthony v. Dowdle, 853 F.2d 741, 743 (9th Cir. 1988). Similarly, a difference in judgment between an inmate and medical personnel does not constitute cruel and unusual punishment. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

In his complaint, Krause alleged that after he underwent surgery to treat a brain aneurysm, a doctor prescribed Dilantin to prevent seizures. He further alleged that the prescribed dosage of 1200 milligrams per day was excessive, toxic, and dangerous. As a result, he allegedly suffered "swelling of the brain, severe vomiting, dehydration, dizziness, hallucinations, disorientation, memory loss, uncoordinated muscle movement, and near death."

At most, Krause alleges negligence, which does not state a claim under the eighth amendment. Anthony, 883 F.2d at 743. Because Krause cannot state a constitutional claim, the district court did not abuse its discretion by denying Krause's motion for a continuance to engage in discovery to identify the names of the doctor and pharmacist who were responsible for the alleged overdose. See Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989). Because Krause cannot state a federal claim, the district court also properly dismissed Krause's pendant state medical malpractice claim. See Cook, Perkiss & Liehe, Inc. v. Northern Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).² 

AFFIRMED.