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Powell v. Marlais

United States District Court, N.D. California

January 5, 2015

MICHAEL ANGELO POWELL, Plaintiff,
v.
MARLAIS, et al., Defendants.

ORDER OF SERVICE

JACQUELINE SCOTT CORLEY, Magistrate Judge.

INTRODUCTION

Plaintiff, a California prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983.[1] Plaintiff is granted leave to proceed in forma pauperis in a separate order. For the reasons discussed below, the United States Marshal is ordered to serve Defendants.

STANDARD OF REVIEW

A federal court must dismiss a case filed in forma pauperis under 28 U.S.C. § 1915 at any time if the court determines the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only give the defendant fair notice of what the.... claim is and the grounds upon which it rests." Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). Although to state a claim a complaint "does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

DISCUSSION

Plaintiff's allegations that defendants Dr. Marlais and Dr. Calderon, two dentists at the Correctional Training Facility in Soledad, California, failed to properly treat his abscessed tooth in 2012 and 2013, are sufficient, when liberally construed, to state a cognizable claim under Section 1983 for the violation of his right under the Eighth Amendment to be free from cruel and unusual punishment. Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (dental care important medical need of inmates; deliberate indifference to such needs violate Eighth Amendment).

CONCLUSION

For the foregoing reasons,

1. The Clerk shall issue a summons and Magistrate Judge jurisdiction consent form and the United States Marshal shall serve, without prepayment of fees, the summons, the Magistrate Judge jurisdiction consent form, a copy of the amended complaint with attachments thereto, and a copy of this order upon: Dr. R. Marlais and Dr. Calderon, staff dentists at Correctional Training Facility in Soledad, California.

The Clerk shall also mail a courtesy copy of the amended complaint with all attachments and a copy of this order to the California Attorney General's Office.

2. Each Defendant shall complete and file their own Magistrate Judge jurisdiction consent form within 28 days of the date they are served, or 91 days of the date this order is filed, whichever comes first. If all of the ...


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