The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS
OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on the June 24, 2010, third amended complaint filed in response to an order dismissing the second amended complaint with leave to amend.
Plaintiff, formerly an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at the California Substance Abuse Treatment Facility at Corcoran (SATF), brings this civil rights action against defendant correctional officials employed by the CDCR at SATF. Plaintiff names the following individual defendants: Warden A. K. Scribner; Associate Warden T. P. Wan; Deputy Warden D. Fulks; Chief Medical Officer P. McGuiness; Correctional Health Administrator G. Martinez; Dr. Nguyen, M.D. Chief Oral Surgeon Dr. Baker; and, Registered Nurse Dela Rosa and Registered Nurse James. The claims in this action stem from an attack on Plaintiff by other inmates on January 7, 2006. Specifically, Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs resulting from the attack.
Plaintiff filed the original complaint in this action on October 5, 2006. The Court found that Plaintiff's original complaint stated a cognizable claim against Dr. Baker. The Court ordered the U.S. Marshal to serve Dr. Baker with a copy of Plaintiff's complaint on May 14, 2008. Dr. Baker submitted a waiver of service on July 11, 2008.
On June 30, 2008, Plaintiff filed a motion requesting leave to file an amended complaint. On August 25, 2008, Plaintiff filed another motion requesting leave to amend his complaint. Plaintiff's motion was granted on September 3, 2008. Plaintiff filed his first amended complaint on September 29, 2008. On January 26, 2009, Plaintiff filed another motion to amend his complaint. The Court granted Plaintiff's motion on May 1, 2009. Plaintiff filed his second amended complaint on June 4, 2009. On April 12, 2010, an order was entered, dismissing the second amended complaint for failure to state a claim and granting Plaintiff leave to file a third amended complaint. On June 24, 2010, Plaintiff filed the third amended complaint that is now before the Court.
II. Screening Requirement
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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.
A. Summary of Allegations
Plaintiff was injured as a result of an altercation that occurred at SATF on January 7, 2006. (Am. Compl. ¶ 16.) Plaintiff was struck on the side of his face by a baton, suffering injuries to his jaw. Id. Medical staff responded immediately, noting that "a tooth had gone missing due to the severe bleeding and a huge gap between plaintiff's teeth." Id. Plaintiff was in "extreme pain and agony," and pleaded for pain medication. Id. Plaintiff was advised that Dr. Nguyen would not prescribe pain medication, but that Plaintiff would be scheduled to be seen by Dr. Nguyen the next day. Id.
Plaintiff was not seen until January 10, 2006. (Am. Compl. ¶ 19.) Plaintiff was seen by the Chief Oral Surgeon, Dr. Baker. Dr. Baker ordered x-rays, and determined that Plaintiff suffered a greenstick fracture, and that a portion of Plaintiff's upper molar was missing. Id. Dr. Baker told Plaintiff that "the injuries were not serious and that an appointment would be made to see the regular C-Facility yard dentist in three days." (Am. Compl. ¶ 20.) Plaintiff complained of pain. Dr. Baker responded by telling Plaintiff "that the pain would pass and that he would not prescribe pain medication." Id.
On January 18, 2006, Plaintiff was seen by the regular yard dentist. (Am. Compl. ¶ 21.) The yard dentist examined Plaintiff, including additional x-rays, and advised Plaintiff that he could not do anything until "the pain and swelling went down." Id. Plaintiff was ...