United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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).
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.
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).
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. §
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.
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).
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.)
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.)
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. (Id. at 6-7.)
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 ...