The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF PLAINTIFF'S ACTION FOR FAILURE TO STATE A CLAIM (DOC. 10) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS
Findings and Recommendations
Plaintiff James Bowell ("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 December 15, 2010. Doc. 1. On June 7, 2011, the Court dismissed the complaint and granted Plaintiff leave to amend. Plaintiff failed to file a timely amended complaint. On August 12, 2011, the Court issued an Order to Show Cause why the action should not be dismissed for failure to obey a court order and for failure to state a claim. On August 23, 2011, Plaintiff filed a First Amended Complaint ("FAC"). Given Plaintiff's filing, the Order to Show Cause is HEREBY DISCHARGED. Accordingly, the FAC is now before the Court for screening.
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 was previously incarcerated at California Substance Treatment Facility ("SATF") in Corcoran, California. Plaintiff names as Defendants: M. Ancheta, L. Metzler, R. Kifer, and M. J. Gaedke, dentists employed at SATF; and V. Fanous, chief dentist at SATF.
As in his original complaint, Plaintiff alleges the following: On January 18, 2008, Defendant L. Metzler stated that Plaintiff's molars #19 and #13 would be repaired by a dentist in the community, but the prison will only pull both under existing policy. FAC ¶ 1.
On February 25, 2008, in response to Plaintiff's 602 inmate grievance, Defendant Gaedke stated that CDCR does not provide root canal treatment for posterior teeth, including Plaintiff's molar. FAC ¶ 2.
On April 22, 2008, Defendant R. Kifer attempted to convince Plaintiff to extract two teeth, #19 and #13, stating they could be easily restored, and that SATF provides only a silver crown. FAC ¶ 3.
On May 25, 2008, defendant M. Ancheta refused root canal treatment, forcing Plaintiff to have a tooth extraction of the #19 molar. The extraction took over thirty minutes. During the extraction, Defendant Ancheta knocked Plaintiff's front tooth loose by bumping it. The unnecessary molar extraction caused a number of problems, including Plaintiff being unable to eat on the left side of his mouth, the bite of his teeth being off, loss of weight from 170 to 140 pounds, left side of Plaintiff's neck becoming loose from lack of biting and damage to Plaintiff's jaw bone. FAC ¶¶ 4.
On June 17, 2008, Defendant V. Fanous, during a grievance appeal, refused to provide off-site dental care per the California Code of Regulations. FAC ¶ 5.
Plaintiff alleges violation of the Eighth Amendment, as well as dental malpractice. Plaintiff requests declaratory ...