The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND RESPONSE DUE WITHIN THIRTY DAYS (DOC. 1)
Plaintiff Jesse Galindo ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on January 6, 2011. Doc. 1.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff is currently incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names as Defendants Matthew Cate, secretary of CDCR; warden Gonzales of CCI, and dentists John Does 1 and 2 of CCI.*fn1
Plaintiff alleges the following. On April 9, 2010, Plaintiff was seen by Defendant John Doe 1, complaining of a mild toothache which became excruciating when Plaintiff ate hot or cold foods. Defendant requested an x-ray. Defendant showed Plaintiff the x-ray and explained that Plaintiff was suffering toothache due to a metal filling that touched a nerve at the root of the tooth. Defendant advised Plaintiff to keep all food on the left side of the mouth to minimize Plaintiff's pain. Based on the incorporated exhibits, it appears that Plaintiff's toothache stemmed from a molar in the lower right portion of Plaintiff's mouth. Compl. 27.
Plaintiff learned from Defendant John Doe 2 on June 1, 2010 that a root canal could alleviate Plaintiff's toothache. Defendant John Doe 2 explained that he was not permitted to perform root canals on posterior teeth, and that Plaintiff's only options were to extract the tooth or continue to suffer pain. Plaintiff opted to have the tooth extracted.
Plaintiff complains that Defendant Cate implemented a dental service policy that violated Plaintiff's constitutional rights because it excluded root canals on posterior teeth as an available treatment. Plaintiff contends that root canals can be performed, but only with prior approval from the dental authorization review committee. Plaintiff complains that Defendant Cate failed to properly train Defendants John Does 1 and 2. Plaintiff complains that Defendant Gonzales as warden implemented this policy and is liable under the same theory as Defendant Cate.
Plaintiff contends deliberate indifference by all Defendants. Plaintiff requests as relief monetary damages.
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's 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)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." ...