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Kenneth E. Baptiste v. G. Dunn

January 29, 2013

KENNETH E. BAPTISTE, PLAINTIFF,
v.
G. DUNN, DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, an inmate of the California Department of Corrections ("CDCR"), proceeds pro se on a first amended civil rights complaint filed pursuant to 42 U.S.C. § 1983. (Dkt. No. 46.) Plaintiff alleges that defendants were deliberately indifferent to his serious dental needs in violation of the Eighth Amendment. Defendants have moved to dismiss the complaint. (Dkt. Nos. 59, 69.) The matter is fully briefed. (See Dkt. Nos. 73, 74, 76.)

I. Allegations of the First Amended Complaint

The events giving rise to this lawsuit occurred at High Dessert State Prison ("HDSP"), where plaintiff was incarcerated at all times relevant. At HDSP, G. Dunn, DDS, provided dental care to plaintiff from February 28, 2002 to February 7, 2003. (Dkt. No. 46 at 3.) During that time period, plaintiff's gum infection went untreated, resulting in severe gum loss, bone loss, and the extraction of 17 teeth. (Id.) Plaintiff alleges that this resulted from CDCR's policy of not employing a periodontist or gum specialist and providing only emergency extractions and temporary fillings. (Id.)

C. Hopson, DDS, was responsible for plaintiff's dental care from July 27, 2006 to January 7, 2007. (Dkt. No. 46 at 4.) Hopson denied plaintiff's request for treatment of his gum infection, stating CDCR does "not provide funds for oral infections treatment" and that plaintiff's only option was full mouth extractions. (Id.)

D. Simpson, DDS, was responsible for plaintiff's dental care from June 27, 2007 until April 20, 2008. (Dkt. No. 46 at 4.) Simpson recognized plaintiff's gum infection and serious medical need, however, per policy, only provided the easier and less efficacious treatment of extraction. (Id.)

C. Callegari,*fn1 Dental Assistant to Dunn, Hopson and Simpson from February 28, 2002 until April 28, 2008, "coordinated and promoted [the dentists'] unprofessional practice" and the unnecessary extractions of plaintiff's teeth. (Dkt. No. 46 at 4.)

R. Christe, the Medical Appeal Analyst at HDSP, "erected arbitrary and burdensome procedures that resulted in interminable delays and denial of access to the Inmate Appeal process." (Dkt. No. 46 at 4.) Similarly, N. Acquaviva, the Health Care Manager at HDSP, delayed and obstructed the grievance process in an attempt to circumvent departmental review. (Id.)

R.J. Leo, the Chief Dental Director at HDSP, endorsed the policy and practice of not providing oral specialists to treat prisoners at HDSP with oral infections. (Dkt. No. 46 at 5.) Likewise, T. Felker, the Warden at HDSP, "elected not to correct the denial of appropriate treatment and the obstruction of the appeal process" even after it was brought to his attention by plaintiff on April 17, 2007. (Id.)

Ultimately, 22 of plaintiff's teeth were extracted. (Dkt. No. 46 at 5.) At some point, plaintiff was fitted for dentures, however, after a pair was lost, he had to wait more than two years for another pair. (Id.) Plaintiff was unable to chew food, which resulted in weight loss and nutritional deficiencies and negative effect on his overall health and well-being. (Id.)

II. Motions to Dismiss

Defendants move to dismiss plaintiff's first amended complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a cognizable claim. (Dkt. Nos. 59 [defendants Christe and Hopson], 69 [defendants Acquaviva, Callegari, Dunn, Felker, Leo and Simpson].) Named in both their individual and official capacities, defendants assert they are immune from damages under the Eleventh Amendment for actions taken in their official capacities to implement state policy. (Dkt. No. 69 at 8.) Defendants further assert plaintiff's claim for injunctive relief is barred by a pending class action of which he is a member. (Dkt. No. 59 at 6-7; Dkt. No. 69 at 6-7.) Defendant Dunn contends that plaintiff's claim for damages is time barred by the applicable statute of limitations. (Dkt. No. 69 at 7-8.)

A. Legal Standard for Dismissal for Failure to State a Claim The standard used to evaluate a complaint in the face of a motion to dismiss is a liberal one, particularly when the action has been filed pro se. Estelle v. Gamble, 429 U.S. 97 (1976) see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se pleadings are held to a less stringent standard than those drafted by lawyers). A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that plaintiff cannot prove any set of facts consistent with his allegations which would entitle him to relief. NOW, Inc. v. Schiedler, 510 U.S. 249, 256 (1994); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cervantes v. City of San Diego, 5 F.3d 1273, 1274-75 (9th Cir. 1993).

Dismissal of the complaint, or any claim within it, "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."

Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990); see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcraft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

In considering a motion to dismiss, the court accepts as true the allegations of the complaint (Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976)), construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor (Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969)). The court may consider facts established by exhibits attached to the complaint, but also may disregard allegations in the complaint if they are contradicted by facts established by exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court is not required to accept as true allegations that contradict facts which may be judicially noticed. Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988). In ...


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