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August 30, 2005.

LINGPING GU, M.D., et al., Defendants.

The opinion of the court was delivered by: WILLIAM BASSLER, District Judge


Plaintiff, Rodney L. Edwards ("Edwards"), a state prisoner currently confined at Northern State Prison in Newark, New Jersey, seeks to bring this action in forma pauperis pursuant to 28 U.S.C. § 1915. Based on plaintiff's affidavit of indigence, the Court grants the application to proceed in forma pauperis and directs the Clerk of the Court to file the Complaints without pre-payment of the filing fee.

  Having reviewed the Complaint to identify cognizable claims pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court concludes that the Complaint should proceed in part. I. BACKGROUND

  The following factual allegations are taken from the Complaint and are accepted as true for purposes of this review. In his Complaint, Edwards asserts claims that he was denied medical care claim and that defendants were negligent in failing to treat him. The named defendants are: Lingping Gu, M.D., at Central Reception and Assignment Facility ("CRAF"); John Godinsky, M.D., at Northern State Prison ("NSP"); Dr. Bucholtz, at NSP; Bruce Hauck, Administrator at CRAF; and Lydell Sherrer, Administrator at NSP.

  Edwards alleges that, on January 10, 2005, after being treated for a fever, he complained to Dr. Gu about lower back pain. Dr. Gu prescribed aspirin to alleviate the pain and a medical slip for a lower bunk privilege. When Edwards complained to Dr. Gu that the aspirin was not helping with his pain, Dr. Gu explained that Correctional Medical Services at CRAF only referred outside consultation and treatment for inmates assigned to CRAF. Since Edwards was temporarily housed in CRAF until his prison assignment was designated, he would not be there long enough to schedule an outside appointment. Edwards remained at CRAF for 49 days, until February 28, 2005, when he was transferred to Northern State Prison.

  On March 24, 2005, while at NSP, Edwards filled out a medical request form, complaining of intense pain in his lower back and down his left leg. He was seen by Dr. Bucholtz on March 31, 2005, who prescribed Naproxen (500 MG) and ordered x-rays. The x-rays were negative and Dr. Bucholtz diagnosed plaintiff's condition as muscle spasms. Edwards insisted that the Naproxen did not work for him in the past, and that his lower back has become inflamed and the pain in his lower back and left leg more intense and severe.

  On May 23, 2005, Edwards was examined by Dr. Godinsky for his complaints of lower back and left leg pain. Dr. Godinsky diagnosed plaintiff's condition as sciatica. Dr. Godinsky also explained to plaintiff that an MRI and neurological surgery was not indicated, and instead prescribed Prednisone, Chlorzoxazone, and Motrin for pain.

  Edwards filed grievances with both Hauck and Sherrer, the Administrators at CRAF and NSP, respectively, which went unanswered. Edwards seeks injunctive relief directing defendants to provide medical treatment. He also asks for money damages, $5million in compensatory damages and $5 million in punitive damages.


  The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 1041-34, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental employee or entity. The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.*fn1

  In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however, credit a pro se plaintiff's "bald assertions" or "legal conclusions." Id.

  A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is "frivolous" is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

  A pro se complaint may be dismissed for failure to state a claim only if it appears "`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981).

  Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker, 363 F.3d 229 (3d Cir. 2004) (complaint that satisfied notice pleading requirement that it contain short, plain statement of the claim, but lacked sufficient detail to function as a guide to discovery, was not required to be dismissed for failure to state a claim; district court should permit a curative amendment before dismissing a complaint, unless an amendment would be futile or inequitable); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, ...

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