Mize v. Keirnan

          ORDER

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         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 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).

         II. Screening Standard

         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.

         In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions, " "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. 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." Iqbal, 129 S.Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         III. Allegations

         Plaintiff names five defendants: the Secretary of the California Department of Corrections ("CDCR"), three members of the medical staff at Mule Creek State Prison ("MCSP"), and one MCSP official. (ECF No. 1 at 2.)

         Plaintiff alleges that defendant Dr. Horowitz refused to prescribe adequate pain medication for plaintiff's chronic and severe pain, which stemmed from osteoarthritis, bone spurs, and facial injuries sustained in two assaults in 2011. (Id. at 4-5.) Prior to arriving at MCSP, plaintiff had been in CDCR's Chronic Care Pain Management Program "for narcotic and/or opiate pain therapy" for three years. (Id. at 5.) Within ten days of plaintiff's transfer to MCSP, plaintiff's prescribed morphine was confiscated, and Dr. Horowitz would not prescribe the pain medication that had worked in the past. (Id. at 4-5.) Plaintiff suffered "ongoing severe pain, " and had to "sleep sitting up because of pain on both sides of the body and neck[.]" (Id. at 5.)

         Plaintiff alleges that defendant Nurse Practitioner Saipher "assumed the duties as Primary Care Provider for plaintiff when Dr. Horowitz was not available for several months." (Id. at 6.) Though Saipher told plaintiff he could "see that plaintiff's physical condition was deteriorating since his 2013 arrival at MCSP, " Saipher refused to adequately treat plaintiff's pain.^[1] (Id. at 6-7.)

         Defendants Dr. Smith and C.E.O. Smiley reviewed plaintiff's medical grievances claiming Saipher "had been falsifying plaintiff's medical records as well as refusing to treat plaintiff's chronic and severe pain." (Id. at 8-10.) Smith refused to conduct an investigation into plaintiff's claims, correct plaintiff's medical records, or "override NP Saipher's refusal" to treat plaintiff's chronic pain. (Id. at 9.) Similarly, after a brief interview with plaintiff, Smiley concluded that ...