Aquino v. Rasavi

          ORDER OF SERVICE

          SALLIE KIM UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner at the California Institution for Men (CIM) in Chino, California, has filed a pro se complaint for damages under 42 U.S.C. § 1983 alleging deliberate indifference during a dental scaling procedure when he was incarcerated at the Correctional Training Facility (CTF) in Soledad, California.

         The complaint is properly before the undersigned for preliminary screening because plaintiff has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

         DISCUSSION

         A. Standard of Review

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         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).

         B. Legal Claims

         Plaintiff alleges that on April 9, 2015, CTF dentist E. Rasavi was deliberately indifferent to his health and safety needs when, during a scaling procedure on plaintiff's teeth, Rasavi "knowingly, carelessly and recklessly" cut plaintiff's gums unnecessarily several times causing bleeding and later an infection, used excessive amounts of anesthesia to cover up his actions and burned plaintiff's lower lip by "knowingly and recklessly" using faulty equipment. Compl. (ECF No.1) at 8.

         Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A "serious medical need" exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citing Estelle, 429 U.S. at 104), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); see also Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (dental care important medical need of inmates). A prison official is "deliberately indifferent" only if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

         Neither negligence nor gross negligence warrant liability under the Eighth Amendment. Id. at 835-36 & n.4. An "official's failure to alleviate a significant risk that he should have perceived but did not . . . cannot under our cases be condemned as the infliction of punishment." Id. at 838. Instead, "the official's conduct must have been ‘wanton, ' which turns not upon its effect on the prisoner, but rather, upon the constraints facing the official." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (citing Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)).

         Liberally construed, plaintiff's allegations state an arguably cognizable § 1983 claim for damages against Rasavi for deliberate indifference to plaintiff's health and safety and will be ordered served on Rasavi. See McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992) (deliberate indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown in the way in which prison officials provide medical care), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). But CTF Warden Shawn Hatten and Secretary of California Department of Corrections and Rehabilitation (CDCR) Scott Kernan, whom plaintiff names as additional defendants on the ground that they were charged with his safety and welfare, will be dismissed because there is no indication whatsoever that they knew that plaintiff faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable steps to abate it. See Farmer, ...