The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN 30 DAYS
Plaintiff Thon Ngot Sang ("Plaintiff") is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at the California Substance Abuse Treatment Facility and State Prison in Corcoran, California ("CSATF-CSP") at the time of the events described in his complaint. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth Amendment. Plaintiff names R. E. Baker (chief dental officer), A.K. Scribner (warden), T.P. Wan (associate warden), P. McGuinnes (chief medical officer), G. Martinez (correctional health administrator II), Dr. Nguyen (physician), Dela Rosa (registered nurse), Tanner (registered nurse), James A. S. (registered nurse), and multiple Doe's as defendants. For the reasons set forth below, the Court finds that Plaintiff's second amended complaint fails to state any cognizable claims upon which relief may be granted under section 1983. Plaintiff's second amended complaint will be dismissed with leave to file a third amended complaint within 30 days. ///
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff filed the original complaint in this action on October 5, 2006. (Doc. #1.) The Court found that Plaintiff's original complaint stated a cognizable claim against R. Baker. The Court /// ordered the U.S. Marshal to serve Baker with a copy of Plaintiff's complaint on May 14, 2008. (Doc. #18.) Baker submitted a waiver of service on July 11, 2008. (Doc. #31.)
On June 30, 2008, Plaintiff filed a motion requesting leave to file an amended complaint. (Doc. #26.) On August 25, 2008, Plaintiff filed another motion requesting to amend his complaint. (Doc. #36.) Plaintiff's motion was granted on September 3, 2008. (Doc. #40.) Plaintiff filed his first amended complaint on September 29, 2008. (Doc. #41.) On January 26, 2009, Plaintiff filed another motion to amend his complaint. (Doc. #44.) The Court granted Plaintiff's motion on May 1, 2009. (Doc. #49.) Plaintiff filed his second amended complaint on June 4, 2009. (Doc. #50.) This action proceeds on Plaintiff's second amended complaint.
Plaintiff claims that Defendants failed to provide Plaintiff with adequate medical care. On January 7, 2006, Plaintiff was attacked by two other inmates in the prison yard. Officers responded to the incident, and Plaintiff was struck with an officer's baton in the lower jaw.
Only two medical personnel (MTA Jane Doe and Defendant James A. S.) were available because the incident occurred late Saturday afternoon. Defendant Tanner stated that he would send an order for Motrin. However, Plaintiff never received any pain medication. Plaintiff was only given an ice pack and gauze for the bleeding. Plaintiff also claims he as given "a liquid placebo solution" that did nothing to alleviate the pain.
Plaintiff was unable to eat dinner that night as a result of the pain. Plaintiff felt a sharp pain on the right side of his jaw. Plaintiff reached in his mouth and pulled out a "broken piece of molar." Plaintiff requested pain medication and complained that he was unable to eat but his requests for treatment were denied.
Plaintiff claims that "review of recorded phone statements" revealed that Defendant Dela Rosa contacted a doctor, Defendant Nguyen, and scheduled Plaintiff to be seen in the morning. Plaintiff complains that he should have been given immediate emergency treatment.
Some time later, Plaintiff was escorted from his cell and placed in administrative segregation. Plaintiff was not seen by medical personnel or given treatment for the next two days, despite making numerous pleas for attention. Plaintiff was taken to the Correctional Treatment Center ("CTC") on Tuesday, three days after the incident. Plaintiff was seen by Defendant R. E. Baker, chief oral surgeon. Baker ordered x-rays and noted a "greenstick fracture to the right upper mid mandible jaw area, chipped upper right rear molar, and wide visible splitting gap between the lower left teeth area which included also frontal and back gum lacerations slanting vertically downwards." Plaintiff was told that his injuries were not sufficiently serious to warrant prescribing treatment and medication and that Plaintiff would be referred to the prison yard's dentist for repair. When Plaintiff complained about being unable to eat, Baker said "you'll eat when hungry enough."
On January 11, 2006, Plaintiff was seen by a committee consisting of numerous prison officials, none of which are named as defendants. Plaintiff complained about the lack of care and his desperate need for medical treatment, but the committee ignored Plaintiff's complaints.
Plaintiff did not receive his scheduled appointment with the prison yard's dentist until January 18, 2006, eight days after being scheduled by Defendant Baker. During the appointment, Plaintiff received more x-rays. Plaintiff was told that an extraction for his upper right rear chipped molar was not possible until Plaintiff could open his jaw wide ...