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Mize v. Beard

United States District Court, E.D. California

August 5, 2016

DENNIS WAYNE MIZE, SR., Plaintiff,
v.
JEFFREY BEARD, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On August 28, 2015, the court screened plaintiff’s second amended complaint pursuant to 28 U.S.C. § 1915A and found the allegations therein sufficient for plaintiff to proceed on Eighth Amendment claims against defendants Tseng, Akintola and Smith to the extent plaintiff alleges they did not provide plaintiff with adequate pain medication. Those defendants have filed a motion to dismiss asserting: 1) plaintiff has not pled facts stating a claim under the Eighth Amendment; and 2) defendants are immune from suit under the “qualified immunity” doctrine. In addition, plaintiff has filed a motion seeking a preliminary injunction.

         I. Facts

         When considering whether a complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, the court must accept the allegations of the complaint as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe facts in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Where the contents of particular documents are alleged within a complaint, the court can consider the actual documents when ruling upon a Rule 12(b)(6) motion pursuant to the “incorporation by reference doctrine” as long as no party questions the authenticity of such documents. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

         After reviewing plaintiff’s operative second amended complaint, and any documents incorporated by reference therein, the court construes the facts material to defendants’ motion to dismiss to be as follows:

         1. At all relevant times, plaintiff was an inmate at Mule Creek State Prison. Defendant Smith was employed there as Chief Surgeon and Physician; defendant Tseng as a physician and surgeon, and defendant Akintola as a physician’s assistant.

         2. Before plaintiff arrived at Mule Creek, plaintiff had sustained several injuries including:

A. Injuries to his liver, right lung, intestines and stomach muscles as a result of a motorcycle accident.
B. Hyper-extension of his left elbow.
C. Several puncture wounds on plaintiff’s left arm caused when plaintiff was bitten several times by a police dog.
D. Multiple facial and nasal bone fractures resulting from a prison fights.

         3. Before arriving at Mule Creek, plaintiff had a long history of being provided pain medication, including narcotics, for his various injuries.

         4. Plaintiff was transferred to Mule Creek on February 8, 2013.

         5. On February 22, 2013, plaintiff was examined by defendant Dr. Tseng as a new arrival at Mule Creek. In his report regarding the exam (ECF No. 1 at 177), [1] Dr. Seng noted that plaintiff had been prescribed “chronic opiate therapy” for injuries to his left elbow. However, defendant Tseng suspended this treatment because there was documentation indicating that on February 14, 2013, plaintiff was caught attempting to divert narcotic pain medication: he did not immediately swallow pain medication given to him in a pill line. Plaintiff admits that such a report was generated by a nurse plaintiff cannot identify, [2] based upon an incident occurring February 14, 2013. Plaintiff insists, however, that he did not attempt to divert pain medication. Dr. Tseng indicated that plaintiff would be required to obtain approval from the “pain management committee in order to override the documentation of narcotic diversion.” Finally, Dr. Tseng indicated that he would taper plaintiff off his opiate medication over the next 14 days and “arrange ...


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