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James W. Brammer v. K. Mendoza-Powers

March 30, 2012

JAMES W. BRAMMER,
PLAINTIFF,
v.
K. MENDOZA-POWERS, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 17 / OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations

I. Procedural History, Screening Requirement, and Standard

On July 14, 2010, Plaintiff James W. Brammer ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On June 10, 2011, the Court issued a screening order, dismissing Plaintiff's complaint, with leave to amend. Doc. 10. On October 12, 2011, Plaintiff filed a first amended complaint. Doc. 17.

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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. 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.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Allegations in Plaintiff's First Amended Complaint

In Plaintiff's first amended complaint, he names Defendants K. Mendoza-Powers, Warden and D. Moody, D.D.S., who were employed at Avenal State Prison ("Avenal"). Am. Compl. at 1-3, Doc. 17. On June 6, 2006, Plaintiff arrived at Avenal. Id. at 5. On September 20, 2006, Plaintiff filed an inmate appeal stating that he has been incarcerated since 1991 in Tehachapi, Centinela, Pleasant Valley, and Avenal prisons, and he has yet to have his dental problems resolved. Id. at 12, 14. Plaintiff requested weekly dental care. Id. at 12.

Plaintiff alleges that he suffered excruciating pain from broken and decaying teeth. Id. at 3. The dentist at Avenal, Defendant Dr. Moody, examined Plaintiff and found that he was a level two priority. Id. Dr. Moody advised that if his condition worsened, he would be eligible for emergency treatment. Id. Plaintiff continued to suffer severe pain and filed numerous 602 appeals stating his broken teeth had lacerated his tongue on several occasions. Id. Dr. Moody refused to provide the dental treatment that Plaintiff required, which resulted in the loss of three teeth. Id. at 3, 6. Defendant Warden Mendoza-Powers was responsible for all Avenal prison staff, was made aware of the situation, and did not address the issue. Id. at 3. Plaintiff wrote Defendant Warden Mendoza-Powers to inform her of his serious medical needs but the Warden did not answer his letters. Id. at 5.

For relief, Plaintiff seeks monetary damages of $1,500 per laceration caused by razor sharp edge of broken tooth; $5,000 per tooth lost; and punitive damages to be determined by the evidence. Id. at 3.

III. Legal Standard and Analysis for Plaintiff's Claims

A. Eighth Amendment Deliberate Indifference to ...


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