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Gregorio C. Funtanilla, Jr v. David Tristan

June 2, 2011

GREGORIO C. FUNTANILLA, JR.,
PLAINTIFF,
v.
DAVID TRISTAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER PERMITTING PLAINTIFF TO PROCEED IN FORMA PAUPERIS PURSUANT TO IMMINENT DANGER EXCEPTION, DISMISSING ALL CLAIMS FROM ACTION OTHER THAN DENTAL CARE CLAIM, AND DISMISSING DENTAL CARE CLAIM WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (Doc. 7)

THIRTY-DAY DEADLINE

Screening Order

I. Eligibility to Proceed In Forma Pauperis

Plaintiff Gregorio C. Funtanilla, Jr., a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 9, 2010. Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless he is, at the time the complaint is filed, under imminent danger of serious physical injury.*fn1 On June 16, 2010, the Court denied Plaintiff leave to proceed in forma pauperis in this action, finding that he did not meet the imminent danger exception. Plaintiff sought reconsideration and in relevant part argued that paragraph 39 of his complaint satisfied the imminent danger exception. On July 13, 2010, the Court denied Plaintiff's motion for reconsideration as to that argument, stating that Plaintiff's allegations regarding arthritis and his inability to do the exercises recommended by the doctor due to his cell size did not satisfy the imminent danger exception.

Undeterred, Plaintiff filed an amended complaint as a matter of right on July 30, 2010, Fed. R. Civ. P. 15(a), and added a new claim that he is suffering from dental care needs so severe that he is in danger of losing his jaw due to infection.*fn2 Based on the inclusion of this new claim, the Court will permit Plaintiff to proceed in forma pauperis in this action. However, for the reasons set forth below, Plaintiff's other claims, which are unrelated to his dental care claim, are dismissed as improperly joined.

II. Screening Requirement and Standard

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Iqbal, 129 S.Ct. at 1949; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

III. Plaintiff's Claims

A. Denial of Adequate Dental Care

1. Allegations

Plaintiff alleges that he is in need of immediate dental care, but he is being denied treatment based on the purported lack of dental staff and a lengthy waiting list. Plaintiff alleges that Dr. Young, a dentist, has extracted three teeth already, but Plaintiff is being denied dentures and his gums bleed when he eats. Plaintiff needs two more teeth extracted. One tooth is broken in half, causing it to ...


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