United States District Court, E.D. California
ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 13.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE-STRIKES" PROVISION SET FORTH IN 28 U.S.C. § 1915(g)
GARY S. AUSTIN, Magistrate Judge.
Felix Estrella ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this case on August 12, 2011. (Doc. 1.)
On August 24, 2011, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The court screened Plaintiff's Complaint and issued an order on November 19, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On December 9, 2013, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 13.)
II. SCREENING REQUIREMENT
The in forma pauperis statutes provides that "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, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955 (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) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal , 556 U.S. at 678.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff was incarcerated at Kern Valley State Prison in Delano, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR), at the time the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as sole defendant Dr. Garcia (dentist) ("Defendant"). Plaintiff's allegations follow, in their entirety:
On December 30, 2010, Plaintiff advised the Building Officer that his front tooth was loose and that Plaintiff was in severe pain. The officer, C/O Brecker called the dental clinic at the Kern Valley Prison and told them of Plaintiff's condition and... Plaintiff would be seen the same day. Plaintiff was not seen by anyone until the next day, when C/O Brecker helped put in a medical slip request. Plaintiff was seen by a License Vocational Nurse (LVN). The LVN called the dental clinic. The LVN was told that the Clinic refused to prescribe pain medication. Plaintiff was not called to the dental clinic until January 2, 2011. On January 12, 2011, Defendant Dr. Garcia finally gave Plaintiff treatment, but pulled the wrong tooth and left the infected tooth in.
(First Amended Complaint at 3 ¶IV). Plaintiff requests monetary damages as relief.
IV. PLAINTIFF'S CLAIMS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an ...