United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
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.
Allegations of the Complaint
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.
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.
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.
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
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
a follow-up visit to discuss the results of plaintiff's
neck X-ray, plaintiff was seen by defendant Dr.
Horowitz. 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.
Pain Management Committee at Mule Creek evaluated
plaintiff's case on April 14, 2015. 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.
Applicable Legal Standards
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
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).