The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
SUPPLEMENTAL FINDINGS AND
RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND
OBJECTIONS DUE IN THIRTY DAYS
Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Pending before the Court is Plaintiff's June 24, 2010, fifth amended complaint.
Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at CSP Corcoran, brings this civil rights action against correctional officials employed by the CDCR at CSP Corcoran. Plaintiff names as defendants P. Roberts, a registered nurse, and J. Neubarth, a physician. Plaintiff sets forth claims of inadequate medical care and retaliation. Plaintiff also asserts a state law claim for intentional infliction of emotional distress.
Plaintiff filed the original complaint on April 10, 2006 (ECF No. 1.) On December 21, 2006, Plaintiff filed the first amended complaint (ECF No. 13.) On August 1, 2007, pursuant to an order granting him leave to do so, Plaintiff filed the second amended complaint (ECF No. 23.) On June 25, 2008, the Court dismissed the second amended complaint and granted Plaintiff leave to file a third amended complaint. On August 18, 2008, Plaintiff filed the third amended complaint (ECF No. 35.) On June 16, 2009, Plaintiff filed a motion for leave to file a fourth amended complaint, which was granted. The fourth amended complaint was filed on June 18, 2009. (ECF No. 41.) On April 7, 2010, an order was entered, dismissing the fourth amended complaint for failure to state a claim, and granting Plaintiff leave to file a fifth amended complaint. After two extensions of time, Plaintiff filed the fifth amended complaint, which is now before the Court, on June 24, 2010. (ECF No. 51.)
Plaintiff alleges that in May of 2004, he was diagnosed with "serious chronic maladies in my neck: degenerative herniated discs, osteoarthritic changes, and compression on my cervical spine cord." (Am. Compl. ¶ 10.) Plaintiff suffered from severe and excruciating pain, and was treated with aspirin, tylenol and motrin. These drugs proved ineffective, and "several doctors" prescribed vicodin, norco and hydrocordone to alleviate the pain. (Am. Compl. ¶ 12.)
On December 13, 2005, Plaintiff was transported to Mercy Medical Center in Bakersfield. Plaintiff was seen by Dr. Rashidi "regarding the severe/excruciating and debilitating pain caused by the serious/chronic maladies in my neck," (Am. Compl. ¶ 13.) Dr. Rashidi noted that Plaintiff's "vicodin/norco" prescription would expire on December 18, 2005, and renewed Plaintiff's prescription. Plaintiff was returned to CSP Corcoran. (Am. Compl. ¶ 14.)
Plaintiff alleges that "by December 18, 2005," his prescription had not been refilled. On December 27, 2005, Plaintiff was seen by Defendant Neubarth. Plaintiff alleges that Defendant Neubarth "refused to renew/refill my prescription for vicodin/norco and or prescribe any other treatment." (Am. Compl. ¶ 17.)
On January 5, 2006, Plaintiff filed an inmate grievance, "complaining of Defendant Neubarth's deliberate indifference, through his failure to treat me for my severe/excruciating and debilitating pain caused by my serious/chronic maladies in my neck." (Am. Compl. ¶ 18.) On January 19, 2006, Dr. Viravathana (not a named defendant) ordered the pharmacy to refill Plaintiff's vicodin/norco prescription, though with a decreased dosage. (Am. Compl. ¶ 20.)
On February 16, 2006, Defendant Roberts interviewed Plaintiff regarding his inmate grievance. Plaintiff told Roberts "that she was a subordinate to Defendant Neubarth. Thus, she had no authority to take any corrective action. So my appeal should have never been assigned to her. That she needed to send it back, to the Chief Medical Officer so he could investigate my allegations and take corrective action." (Am. Compl. ¶ 24.) Plaintiff alleges that Defendant Roberts subsequently entered false information on her response to Plaintiff's grievance, indicating that Plaintiff's allegations were not sustained. Plaintiff alleges that Roberts entered this information despite indications in Plaintiff's medical file that he suffers from a serious and chronic condition. (Am. Compl. ¶ 25.)
Plaintiff also alleges that Defendant Roberts retaliated against him for filing "medical 602 appeals." Specifically, Plaintiff alleges that between February 28, 2006, and March 15, 2006, Defendant Roberts refused to follow CDCR protocol in that she failed to schedule Plaintiff for a pain assessment. The pain assessment was required in order for Plaintiff to be seen by the yard physician. (Am. Compl. ¶29.)