What is the test for deliberate indifference on behalf of EOCI?

Appellant received treatment promptly upon his arrival at EOCI. He was able to make his medical problems known to the medical staff, and periodic examinations, treatment, and regular medication for his arthritis condition were made available. Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982) (deliberate indifference where prisoners unable to make their medical problems known to the medical staff). Appellant was given medical care that addressed his needs, and which was adjusted to accommodate his condition.

The Eighth Amendment does not protect prisoners from diagnosis or treatment that is merely negligent. Estelle, 429 U.S. at 106. Even a condition constituting medical malpractice does not necessarily establish cruel and unusual punishment. Toussaint, 801 F.2d at 1113. "It is only deliberate indifference to serious medical needs that can offend 'evolving standards of decency' which will violate the Eighth Amendment." Id. (quoting Estelle, 429 U.S. at 106). Even construing all facts in his favor, appellant's treatment "cannot be said to be so outrageous as to amount to no treatment at all." Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir.1971). We conclude that appellant has not made a sufficient objective showing that his treatment constituted cruel and unusual punishment in violation of the Eighth Amendment.

Appellant also has failed to put forth a sufficient showing on the second component of an Eighth Amendment claim of cruel and unusual punishment. The "subjective" element requires an inquiry into the prison official's state of mind in performing the conduct complained of. Wilson v. Seiter, 111 S.Ct. at 2324.