United States District Court, E.D. California
ALLISON CLAIRE, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has consented to the jurisdiction of the undersigned. ECF No. 5.
By order filed on July 3, 2014, plaintiff was directed to file an affidavit in support of his request to proceed in forma pauperis or the filing fee. ECF No. 4. Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989); Franklin v. Murphy , 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989); Franklin , 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). "The pleading must contain something more... than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees , 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen , 395 U.S. 411, 421(1969).
Plaintiff's complaint chronicles his dissatisfaction with the medical treatment he has received for a chronic constipation condition. Plaintiff names the following as defendants: High Desert State Prison (HDSP) Chief Medical Officer D. Swingle; Deputy Director J. Lewis of the California Department of Corrections and Rehabilitation (CDCR)-Health Care; and Secretary of the CDCR, J. Beard. Complaint, ECF No. 2 at 1.
When plaintiff arrived at HDSP in July of 2013, plaintiff informed non-party Dr. Rahman at plaintiff's initial medical examination that he needed the three medications prescribed by the doctor at the prison in Tracy to keep his system from getting "clogged up." Dr. Rahman agreed to keep plaintiff on the medications until plaintiff could receive a colonoscopy to see what might be obstructing plaintiff's bowel movements. On September 17th, plaintiff informed a certified family nurse practitioner, L. Schmidt (also not named as a defendant), that he was running out of his medications. She told plaintiff she would re-order them but when, on September 20th, he ran out of the medication(s), a nurse told him his medicine had not been re-ordered and he could not have any refills until two weeks later. When he argued that his system was backed up with no bowel movement, the nurse gave him an "emergency" stool softener and milk of magnesia. Plaintiff filed a 602 health care appeal against L. Schmidt. Id. at 1-6.
Plaintiff, who is 61, had to go to the clinic daily for a week or so to receive "emergency medication" until L. Schmidt provided re-fills of his medication(s). When Nurse Schmidt gave him the re-fills, she suggested fiber tablets as well. Although plaintiff told her the medication was working and he did not want her "experimenting" on him, he agreed to take the fiber tablets. Afterward, his system was even more clogged and a Nurse Withers (not a party) told him he had to drink a lot of water with them. He told Ms. Withers that he was taking Terazosin to keep him from frequent urination, so she told him to stop the tablets if he could not drink a lot of water, which he did after a few days. Id. at 6-9.
At his October 3, 2013 interview with Nurse Schmidt regarding the 602 appeal plaintiff wrote complaining about her, she told plaintiff she would continue giving him all his medication and that following his colonoscopy he should not have any more problems. Non-party surgeon Dr. Stevenson who performed plaintiff's colonoscopy told plaintiff he had no cancerous polyps and that he saw nothing that explained why his system was clogged. He did say plaintiff had "extreme" ...