ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Raul Hernandez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on May 11, 2009. Doc. 1. On December 2, 2009, the Court screened Plaintiff's complaint and stated that he could proceed on the cognizable claim against R. D. Smith or amend. Doc. 8. On April 30, 2010, Plaintiff filed his first amended complaint, which is currently before the Court. Doc. 12.
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).
"'Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.'" Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden Hayes, 213 F.3d 443, 447 (9th Cir.2000). "'Additionally, in general, courts must construe pro se pleadings liberally.'" Id. A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
Plaintiff is incarcerated at Chuckawalla State Prison, located in Blythe California and is suing under section 1983 for events which occurred while a prisoner at Avenal State Prison in Avenal California. Doc. 12. In his complaint, Plaintiff names the following defendants: 1) T. Smith (DDS dentist); 2) R. D. Smith (DDS dentist); and L. Kirk (DDS dentist). Doc. 12 at 1-3.
Plaintiff alleges that on June 8, 2006, Plaintiff submitted a healthcare request form 7362 for a dental examination since Plaintiff was suffering a great deal of pain. Doc. 12 at 1-2. Plaintiff was seen on August 14, 2006, by the dentist, Defendant T. Smith. Doc. 12 at 2. Plaintiff told Defendant T. Smith that Plaintiff was in extreme pain and that "tooth #31" needed to be fixed to resolve the pain. Doc. 12 at 2. Plaintiff told Defendant T. Smith that the pain from the tooth caused Plaintiff to chew only on his left side. Doc. 12 at 2. According to Plaintiff, "When [Defendant T. Smith] examined [Plaintiff] . . . [Defendant T. Smith] knew right then of [Plaintiff's] serious medical need and that [Plaintiff] was in extreme pain. He failed, in his individual capacity, to treat [Plaintiff] . . .and because of negligence, [Plaintiff's moulder [sic] . . . finally crack[ed] all the way to the bottom of [Plaintiff's] gum causing [Plaintiff] to lose part of [his] tooth." Doc. 12 at 2.
On September 16, 2007, Plaintiff submitted another health care request form #7362 to receive treatment for an abscess tooth and the same molar. Doc. 12 at 2. On September 19, 2007, Plaintiff was seen by another dentist, Defendant R. D. Smith for the abscess on one tooth and problems with his molar. Doc. 12 at 2. According to Plaintiff, when he "asked [Defendant R. D. Smith] a question, [he] was refused treatment and told to leave" and Plaintiff left although he was in a great deal of pain. Doc. 12 at 2. Plaintiff further states that on October 15, 2007, Defendant R. D. Smith "denied/deprived [Plaintiff] medical treatment . . . [for his] serious medical need." Doc. 12 at 2.
On September 24, 2007, Plaintiff submitted another health care request form #7362 to address extreme dental pain that interfered with Plaintiff's ability to brush, eat, sleep and carry out his normal activities. Doc. 12 at 2-3. On the health care request form, Plaintiff asked why he was being denied medical treatment and stated that if he did not receive the necessary help, Plaintiff would end up losing teeth that were otherwise salvageable. Doc. 12 at 3. Plaintiff was seen on September 27, 2007 by dentist Defendant L. Kirk who told Plaintiff that "tooth #8" would have to be extracted. Doc. 12 at 3. Plaintiff asserts that Defendant L. Kirk "must've seen Plaintiff's medical file and seen the progress notes from . . . R. D. Smith [and] T. Smith . . . . [Defendant Kirk] in his individual capacity knew that Plaintiff was in a great deal of pain and needed medical treatment . . . [Defendant Kirk] failed to provide Plaintiff with medical treatment when he was aware that Plaintiff was already being denied medical treatment by [Defendants R. D. Smith and T. Smith]." Doc. 12 at 3.
Plaintiff filed a 602 grievance and on January 17, 2008, Plaintiff was interviewed by Defendant Kirk regarding the grievance. Doc. 12 at 3. During the interview, Plaintiff told Defendant Kirk to look at Plaintiff's medical file and he will be able to see that Plaintiff was overdue for treatment since October 7, 2003. Doc. 12 at 3. According to Plaintiff, "Upon carefully reviewing ...