The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DEFENDANTS SCHUTT, LIU AND HODGES-WILKINS
Findings and Recommendations Following Screening of Complaint
Plaintiff Ferdinand Reynolds ("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 this action on April 16, 2009. On September 18, 2009, the Court issued an order finding that Plaintiff's complaint states a cognizable claim against Defendant Gerstel for violation of the Eighth Amendment, but does not state any cognizable claims against Defendants Schutt, Liu or Hodges-Wilkins. The Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. On October 5, 2009, Plaintiff notified the Court that he will dismiss his claims against Defendants Schutt, Liu and Hodges-Wilkins, and proceed only against Defendant Gerstel. Based on Plaintiff's notice, this Findings and Recommendations now issues.
II. Screening Requirement
Plaintiff Ferdinand Reynolds, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 16, 2009. 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).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
III. Plaintiff's Claims Regarding Inadequate Dental Care
Plaintiff, who is currently housed at Salinas Valley State Prison, brings this action against defendants Dr. Gerstel, Dr. Schutt, Dr. Liu and Captain Hodges-Wilkins. Plaintiff seeks money damages.
Plaintiff alleges that on August 18, 2008, defendant dentist Dr. Gerstel performed dental surgery on Plaintiff and drilled and removed only half of Plaintiff's painful tooth. Plaintiff alleges that defendant Gerstel did so for non-medical reasons and to cause Plaintiff pain. Plaintiff states that he filed an emergency dental complaint on August 25, 2008. Plaintiff states that defendant Schutt refused to process his complaint as a dental emergency. Plaintiff contends that defendants Schutt and Liu did not reach a final decision on his appeal until October 14, 2008, forcing Plaintiff to wait approximately fifty days. Plaintiff alleges that defendant Hodges-Wilkins violated the Plata agreement by evaluating and responding to his medical appeal at the third level of review, when only licensed health care officials are permitted to do so.
Prisoners are entitled to adequate dental care. Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989). However, to rise to the level of cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994).
"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, ...