Unpublished Disposition, 897 F.2d 534 (9th Cir. 1987)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 897 F.2d 534 (9th Cir. 1987)

Abraham T. YANG, Plaintiff-Appellant,v.Daniel J. McCARTHY, et al., Defendants-Appellees.

No. 88-6525.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 28, 1990.* Decided March 6, 1990.



Abraham T. Yang, a California state prisoner, appeals pro se and in forma pauperis the district court's dismissal of his 42 U.S.C. § 1983 complaint with prejudice as frivolous under 28 U.S.C. § 1915(d). Yang contends that various California prison officials were deliberately indifferent to his serious medical needs. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review de novo the district court's dismissal of an action as frivolous under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). A district court may dismiss an in forma pauperis action before service of process, pursuant to 28 U.S.C. § 1915(d), only if the action lacks arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).

To state a claim under 42 U.S.C. § 1983 for a violation of his eighth amendment right to adequate medical care, Yang must show a deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Wood v. Sunn, 852 F.2d 1205, 1210 (9th Cir. 1988). A difference of opinion concerning the medical diagnosis and treatment needed is not sufficient. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

In his complaint, Yang alleged that he suffered from "vertigo" on March 3, 1987 for which he was refused treatment. The complaint evidences anything but indifference to Yang's medical needs. Yang was taken by ambulance to the prison hospital, where he was examined by a physician who determined that no treatment was warranted. Yang merely disagrees with the doctor's diagnosis and, therefore, has failed to show deliberate indifference to his medical needs. See Franklin, 662 F.2d at 1344.

Yang also alleged in his complaint that he suffered from "nose choke," itching eyes, and a "bronchitis cough," which were diagnosed by a medical technical assistant (MTA) who examined him and who also prescribed medicine for each ailment. Yang contends that the MTAs refused to let him see the doctor and that his medication was never delivered, constituting deliberate indifference to his serious medical needs. None of these conditions constitute a serious medical need. Stiltner v. Rhay, 371 F.2d 420, 421 n. 3 (9th Cir.), cert. denied, 387 U.S. 948 (1967). Moreover, the medical staff's negligent failure to deliver medicine to Yang does not rise to the level of deliberate indifference to his needs. Estelle, 429 U.S. at 105-06.1 



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth 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


Yang's motion for a temporary stay of proceedings is denied. The Clerk's office is directed to send further correspondence regarding this case to Yang's temporary address