Loren R. Lusero, Plaintiff-appellant, v. James Rowland, Director, California State Department Ofcorrections, Defendant-appellee, 967 F.2d 588 (9th Cir. 1992)

MEMORANDUM^** 

Loren R. Lusero appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 action against California state prison officials.¹  We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Although Lusero raised several claims in the district court, the only claim he raises on appeal is his claim that prison medical personnel failed to diagnose him before prescribing antibiotics for a venereal disease.²  Lusero claims that he was denied medical treatment by a doctor, and complains that his treatment by antibiotics was interrupted when the pharmacy ran out of his medication. He claims that the medication upset his stomach, and was unwarranted, because he later tested negative for venereal diseases.

The eighth amendment proscription against cruel and unusual punishment prohibits prison officials from deliberately ignoring a prisoner's serious medical needs. See Estelle v. Gamble, 429 U.S. 104, 107 (1976). In meeting this burden the plaintiff must show that the alleged misconduct constituted unnecessary and wanton infliction of pain. See Anthony v. Dowdle, 853 F.2d 741, 742 (9th Cir. 1988) (quotations and citations omitted). Mere indifference, medical malpractice or negligence will not support a cause of action under the eighth amendment. Broughton v. Cutter Lab., 622 F.2d 458, 460 (9th Cir. 1980).

The record shows that Lusero was scheduled for an appointment with a doctor on August 30, 1990, two weeks after he was seen by a medical assistant. Nevertheless, Lusero was prescribed antibiotics one day after he complained to a medical assistant of discharges from his penis. Although Lusero claims that his tests for venereal disease were later determined to be negative, this does not necessarily mean that his treatment was negligent. Moreover, even assuming negligence or malpractice by the defendants, such conduct does not support a cause of action under the eighth amendment. See Broughton, 622 F.2d at 460. Finally, the interruption in Lusero's medication due to a shortage of antibiotics in the pharmacy, or Lusero's upset stomachs as a result of taking the antibiotics, do not rise to a level of deliberate indifference. See Anthony, 853 F.2d at 742.

AFFIRMED.