ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1) ORDER DENYING PLAINTIFF'S MOTION FOR ORDER DIRECTING SERVICE OF SUMMONS AND COMPLAINT (ECF No. 9) THIRTY-DAY DEADLINE
Plaintiff Thomas William Abney is a state prisoner appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's complaint, filed February 25, 2010, and a motion for an order directing service of the summons and complaint filed August 30, 2012. (ECF Nos. 1, 9.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
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, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678-79, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
II. COMPLAINT ALLEGATIONS
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at Chuckawalla Valley State Prison. The incidents contained in the complaint occurred while Plaintiff was housed at California State Prison, Corcoran. Plaintiff brings this action against Secretary of the CDCR Matthew Cate, Associate Director of California Prison Health Care Services T. Kimura-Yip, Warden Derral Adams, Chief Medical Officer W. McGuiness, Chief Dentist Warren H. Liu, Dentist Charles Hwang, and unnamed defendants alleging violations of due process under the Fifth and Fourteenth Amendments and cruel and unusual punishment in violation of the Eighth Amendment and violations of the California Constitution due to inadequate dental care.
Plaintiff submitted a request to prison officials on May 8, 2008, requesting replacement of a dental device, a bridge consisting of six teeth. (Compl. 5-6, ECF No. 1.) On May 13, 2008, Plaintiff was seen by an unnamed Defendant ("Doe 1") who advised Plaintiff that nothing could be done for him as dental staff did not perform bridge work and Plaintiff's commitment to CDCR made such work unsuitable. The incisors of the bridge have broke off causing Plaintiff difficulty in eating and speaking. (Id. at 6.) On May 19, 2008 Plaintiff submitted an inmate appeal which was partially granted with the notation that bridge work is not an authorized service. (Id. at 7.)
Plaintiff was seen by Defendant Hwang on July 29, 2008, in response to the grievance. Plaintiff was advised that the recommended treatment was to cut off the metal mounting band and provide Plaintiff with a removable prosthetic device consisting of the two missing teeth. This could result in the damage to one or more of the anchoring crowns. Defendants Hwang, Liu, and an unidentified defendant ("Doe 2") denied the appeal on August 1, 2008.(Id.) On August 21-22, 2008, Defendants Adams, Lui and McGuiness denied Plaintiff's appeal based on the prison policy. (Id. at 7-8.) Plaintiff's appeal was denied at the third level by Defendant Kimura Yip on September 29, 2009. (Id. at 8.) Plaintiff seeks monetary damages, declaratory and injunctive relief. (Id. at 10.)
For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.