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. 11.)
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.
Vincente Solomon ("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 the Complaint commencing this case on January 12, 2012. (Doc. 1.)
On January 20, 2012, 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. 4.) 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 October 15, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On January 6, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 11.)
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 is presently incarcerated at Corcoran State Prison in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff was incarcerated at California Correctional Institution in Tehachapi, California, at the time the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants CDCR employees Dr. P. Duong (dentist), T. Franco (R.D.A.), Dr. P. Pounds, Chief L. Zamora, Dr. W. Prewett, Dr. Dutry, Correctional Officer (C/O) Vickers, C/O Bergens, Dr. Nguyen, and D.A.R. Doctor ("Defendants"). Plaintiff's factual allegations follow.
On August 27, 2010, Dr. Bruitt, Dr. P. Duong, and R.D.A. T. Franco took x-rays of Plaintiff's mouth and gums. Plaintiff was told that he had a severe mouth infection and abscessed gums. Plaintiff spoke to R.D.A. Nurse Jane Doe who told Plaintiff, in front of his two escorting officers C/O Vickers and C/O Bergens, that for all mouth infections, the proper treatment is a dose of Penicillin or antibiotics, and then she left. T. Franco suggested to Dr. Bruitt and Dr. P. Duong that Plaintiff should not get any antibiotics or a root canal, because she heard Plaintiff is an a-hole, and the CDCR only extracts teeth and does not fix them. Plaintiff told Dr. Bruitt and Dr. P. Duong that he didn't want his teeth pulled out, and wanted to keep them to chew his food. This is when Plaintiff knew R.D.A. Franco, Dr. Bruitt, and Dr. P. Duong were intentionally violating the Eighth Amendment. They all left and went into an office. They came back five minutes later and told Plaintiff his teeth were rotten down to the roots and the infection was so bad it was going to cause all of Plaintiff's teeth to rot and cause permanent blindness. Plaintiff asked when he could get antibiotics to kill the infection. Dr. Bruitt, Dr. P. Duong, and T. Franco said they were not going to give Plaintiff any antibiotics to kill the infection unless he let them pull the teeth "right now." (Amd Cmp (ACP) at 4:19.) All three of them repeated that it goes against CDCR's policy to save teeth, even when they can be clearly saved.
In 2009 at Salinas Valley State Prison, Plaintiff was seen by a dental specialist and knew that the filling in tooth#29 must be removed and replaced. When Plaintiff told this to Dr. Bruitt, Dr. P. Duong, and T. Franco, they again told him it is against CDCR policy to fix inmates' teeth, and they only pull teeth. They refused to give Plaintiff antibiotics, clearly knowing that Plaintiff could lose all of his teeth, go permanently blind, and suffer pain.
On October 29, 2010, Plaintiff's case was turned over to the Dental Authorization Review Board, and on November 3, 2010, he was seen by Dr. A. Pounds. Plaintiff's mouth, jaw, eye, and the whole right side of his face and mouth were swollen from the infection. Dr. A. Pounds said that Plaintiff should have received antibiotics, but that usage of antibiotics should be discouraged as the risks would outweigh the benefits. Dr. A. Pounds told Plaintiff that he did not meet the criteria for other treatment.
Plaintiff was never given any dental treatment or antibiotics. The CDCR dentists all agreed to stick together and cause Plaintiff to go blind and lose all of his teeth. Dr. A. Pounds did not order any treatment or antibiotics for Plaintiff on November 3, 2010. It is humanly impossible for that to be the appropriate dental care. Plaintiff was given no treatment, no pain medications, no heat compression, no hot water or salt water to soothe his gums, and no antibiotics for the infection. This policy violates inmates' rights to dental care. The Prison Law Office and court-appointed dental experts audited the dental programs and made a copy of Plaintiff's dental records, knowing that "somebody dropp[ed] the ball." (ACP at 6:9-10.) CDCR dental staff will only perform root canals on the front eight teeth, and the other teeth are pulled out. Plaintiff filed a complaint and was denied antibiotics and forced to live in pain for nearly four years. This was done to Plaintiff because he is black. The CDCR clearly continues to violate established law by purposely inflicting pain and suffering upon Plaintiff.
At the Director's Level of review, reviewer L. Zamora acknowledged that Plaintiff did not receive any antibiotics or a root canal on September 15, 2010. Dr. A. Haggar, Dr. Duong, Dr. Prewitt, and Dr. A. Pounds, all dentists, agreed they could save Plaintiff's tooth#29 without a doubt, but ...