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Mize v. Kiernan

United States District Court, E.D. California

July 24, 2017

DENNIS WAYNE MIZE, SR., Plaintiff,
v.
SCOTT KIERNAN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a California prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On June 27, 2016, the court screened plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found the allegations therein sufficient for plaintiff to proceed on Eighth Amendment claims against defendants Horowitz, Saipher, and Soltanian for their deliberate indifference to his serious medical need for pain medication. Defendants have filed a motion to dismiss contending that: 1) plaintiff has not pled facts stating a claim under the Eighth Amendment; 2) defendants are immune from suit under the “qualified immunity” doctrine; 3) the Eleventh Amendment bars plaintiff's claims for monetary damages and prospective injunctive relief; and, 4) plaintiff's request for injunctive relief is barred by the Prison Litigation Reform Act (“PLRA”). Plaintiff has filed an opposition, ECF No. 32, and defendants Horowitz and Saipher have filed a reply, ECF No. 33. Plaintiff does not oppose the dismissal of defendant Soltanian and has abandoned his request for injunctive relief so the court will not address these undisputed portions of the pending motions to dismiss. ECF Nos. 31, 32 at 11.

         I. Allegations of the Complaint

         After reviewing plaintiff's complaint, and any documents incorporated by reference therein, the court construes the facts material to defendants' motion to dismiss to be based on a failure to provide him with narcotic pain medication while an inmate at Mule Creek State Prison. Defendant E. Horowitz was plaintiff's treating physician and defendant Marshall Saipher was a nurse practitioner at Mule Creek State Prison.[1]

         Plaintiff sustained several injuries before arriving at Mule Creek. These included three liver surgeries following a motorcycle accident; a left elbow fracture with resulting osteoarthritis; and multiple facial and nasal bone fractures as a result of two prison fights. ECF No. 1 at 17, ECF No. 32 at 14, 16, 19, 30. Before arriving at Mule Creek, plaintiff had a long history of being provided pain medication, including narcotics, for these various injuries. Plaintiff's medical history also indicated side effects from non-steroidal anti-inflammatory drugs (“NSAIDS”) such as ibuprofen, naproxen, motrin, and advil. ECF No. 1 at 17.

         On January 13, 2015 plaintiff was examined by defendant Saipher based on his request to be treated for his chronic pain. ECF No. 1 at 6. This examination revealed that plaintiff complained of pain to his abdomen when it was pressed and had limited range of motion of his neck with “clicks” or popping sounds heard on rotation. ECF No. 1 at 6. Defendant Saipher also noted that plaintiff was unable to straighten his left arm. Id. A review by defendant Saipher of plaintiff's past diagnostic studies indicated a diagnosis of moderate degenerative arthrosis of the left elbow and shoulder. Id. Plaintiff further expressed to defendant Saipher that he was experiencing left elbow and shoulder pain as well as neck pain. Id. Defendant Saipher told plaintiff that he wanted to prescribe him morphine for his injuries because his medical record indicated that it had worked in the past, but he was afraid that Dr. Horowitz or Dr. Smith would confiscate it before plaintiff even received it. Id. At this visit, defendant Saipher ordered an orthopedic consultation for plaintiff's left elbow pain. ECF No. 23-2 at 21.

         Plaintiff was once again treated by defendant Saipher on February 10, 2015. ECF No. 1 at 7. During this visit, defendant Saipher indicated that he could see that plaintiff's physical condition was deteriorating since his 2013 transfer to Mule Creek. Id. Defendant Saipher ordered an X-ray of plaintiff's neck and told him that he would prescribe him with MS Contin two times per day once the X-ray study was obtained. Id.

         Even after the X-ray of plaintiff's neck revealed bone spurring of plaintiff's C5 and C6 cervical vertebrae, defendant Saipher refused to prescribe adequate pain medication or medication that “did not cause side effects so bad it made it unusable to treat plaintiff's numerous painful medical conditions.” Id. at 6-7.

         During a follow-up visit to discuss the results of plaintiff's neck X-ray, plaintiff was seen by defendant Dr. Horowitz.[2] ECF No. 1 at 3. After noting that plaintiff's past diagnostic studies indicated moderate to severe osteoarthritis of the left elbow, moderate degenerative arthrosis of the left elbow and shoulder, and anterior bone spurring of plaintiff's C5 and C6 cervical vertebrae, defendant Dr. Horowitz refused to prescribe adequate pain medication. ECF No. 1 at 3-4. Plaintiff then explained to Dr. Horowitz that “eleven other CDCR Physician's and Physician's Assistant's prescribed MS Contin Morphine approximately fourty-five [sic] (45) times in sixty (60) to ninety (90) day prescription lengths, just prior to Plaintiff's transfer to MCSP from CTF Soledad.” Id. at 4. Plaintiff also informed Dr. Horowitz that this medication had been discontinued within 10 days of his arrival at Mule Creek due to suspicions that he had “cheeked” or diverted his medication. Id. Plaintiff detailed to Dr. Horowitz his most recent facial fractures and his recent participation in the CDCR Chronic Care Pain Management Program which included narcotic and/or opiate pain therapy. Id. at 5. Additionally, plaintiff indicated that he had to sleep sitting up because of the pain he experienced on both sides of his body and neck. Id. Dr. Horowitz refused to prescribe adequate pain medication or a pain medication that plaintiff's medical file demonstrated had worked in the past. Id. Instead, defendant Dr. Horowitz ordered a physical therapy consultation for plaintiff's left elbow, shoulder, and neck pain. ECF No. 32 at 18.

         The Pain Management Committee at Mule Creek evaluated plaintiff's case on April 14, 2015.[3] ECF No. 23-2 at 15. They determined that narcotics were not indicated for plaintiff's chronic pain. ECF No. 23-2 at 15. Instead, they recommended continued use of NSAID medications, an orthopedic evaluation of plaintiff's left elbow that had been previously ordered by defendant Saipher, and an additional X-ray of plaintiff's cervical spine. Id.

         II. Applicable Legal Standards

         In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), “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). In considering a motion to dismiss, 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 party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986).

         A prisoner states a claim under the Eighth Amendment for inadequate medical care if the prisoner points to facts suggesting they were caused injury by a prison official who was deliberately indifferent to the prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A serious medical need exists if the failure to treat a prisoner's condition could result in the “unnecessary and wanton infliction of pain.” Id. at 104. A difference of opinion between an inmate and prison medical personnel-or between medical professionals-regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). To establish a difference of opinion rising to the level of deliberate indifference, plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

         III. ...


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