The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN DEFENDANTS (Docs. 10, 11) RESPONSE DUE WITHIN THIRTY DAYS
I. Findings and Recommendations Following Screening of Amended Complaint
Plaintiff Ricky James ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on March 12, 2008. (Doc. 1.)
On December 16, 2008, the court issued an order finding that plaintiff's allegations give rise to cognizable claims for relief under section 1983 against defendants J. Wilber, Siene, and Johnson for violating Plaintiff's Eighth Amendment rights. However, the Court found that Plaintiff's allegations do not give rise to any claims for relief against defendants J. Jones, N. Grannis, W. J. McGuinneses, M. Hodges-Wilkins, and D. Adams. The Court ordered Plaintiff to either file an amended complaint or notify the Court that he wishes to proceed only on his cognizable Eighth Amendment claims. On January 13, 2009, Plaintiff notified the Court that he does not wish to amend and wishes to proceed only on his cognizable Eighth Amendment claims. Based on Plaintiff's notice, the instant Findings and Recommendations now issues.
The 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. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Summary of Plaintiff's Complaint
Plaintiff is currently a state prisoner at Pelican Bay State Prison in Crescent City, California. Plaintiff was formerly imprisoned at Corcoran State Prison ("CSP"), where the acts he complains of occurred. Plaintiff names as defendants: J. Wilber, dentist at CSP; Siene, an MTA at CSP; Johnson, an RN at CSP; J. Jones, CCII/Appeals Coordinator at CSP; N. Grannis, Chief Inmate Appeals Branch of CDCR; W. J. McGuinness, M.D. and Chief Medical Officer of CSP; M. Hodges-Wilkins, facility captain and appeal reviewer at CSP; and D. Adams, acting Warden at CSP.
Plaintiff alleges the following. On June 11, 2006, Plaintiff submitted an emergency dental request to defendant Siene. Plaintiff had an abscessed tooth that gave him severe pain, as well as broken dentures that inhibited his ability to eat food. Siene refused to allow Plaintiff access to the dental staff because Plaintiff's face was not swollen and thus it was not an emergency. Siene stated that he would receive some medical prescription for the pain, but never did. On July 10, 2006, Plaintiff filed an inmate appeal as an emergency dental request. On July 11, 2006, Plaintiff's appeal was granted, and on July 17, 2007, Plaintiff was ducated and escorted to see defendant J. Wilbur. Wilbur confirmed the abscess and broken dentures. He removed Plaintiff's last upper tooth, making chewing food very difficult if not impossible. Wilbur told Plaintiff he would call him back the next day for a repair of his dentures. Wilbur failed to prescribe anti-biotics, pain medication, or a soft food diet request. (Doc 1., pp. 5-6.)
Plaintiff filed an emergency appeal on July 24, 2006, and July 28, 2006. Plaintiff received a partial grant of his appeal, and was seen on August 9, 2006. Wilbur removed one of Plaintiff's lower teeth, but could not prescribe a nutritional supplement diet, since only the medical department could do so. Wilbur still failed to fix Plaintiff's denture, stating that an institution policy would prevent Plaintiff from having two sets of dentures, and that Wilbur did not feel like finding the repair kit. On August 11, 2006, Plaintiff was seen by defendant Johnson regarding Plaintiff's dietary food request. Johnson refused to grant the request and never examined Plaintiff's gums. (Doc. 1, pp. 7-12.)
Plaintiff received a full grant of one of his appeals, requiring that Plaintiff receive a food or nutritional substitute until he can eat properly. Plaintiff was seen by Wilbur on August 16, 2006, who still refused to repair Plaintiff's dentures. Wilbur did tell Johnson of Plaintiff's need for a dietary supplement, but Johnson continued to deny Plaintiff's request. Plaintiff eventually received Nutrin supplement drinks on August 26, 2006. However, this was discontinued on September 20, 2006, twenty five days later, despite nothing else being done to assist Plaintiff's dental issues. Defendant Siene refused to comply with the doctor's orders on ten of those days. On October 2, 2006, Plaintiff filed an appeal regarding the denial of these Nutrin supplements, one of which was denied by defendant J. Jones as a duplicate of another appeal. Defendant McGuiness partially granted one of Plaintiff's appeals, but failed to address the continued non-compliance by medical staff. Defendants Grannis and Hodges-Wilkins affirmed McGuiness's appeal response, and failed to address non-compliance by medical staff. (Doc. 1, pp. 12-19.)
Plaintiff alleges a violation of the Eighth Amendment and the Due Process Clause, as well as state law claim of malpractice. Plaintiff requests injunctive relief, monetary damages, and an attorney
1. Federal Rule of Civil ...