United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE TO THIS CASE FINDINGS AND RECOMMENDATIONS TO DISMISS
SECOND AMENDED COMPLAINT WITH PREJUDICE (ECF NO. 15)
FOURTEEN-DAY OBJECTIONS DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action filed pursuant to 42 U.S.C.
§ 1983 on May 1, 2017. Plaintiff has consented to
Magistrate Judge jurisdiction. (ECF No. 5). No other parties
13, 2017, Plaintiff's complaint was dismissed with leave
to amend. (ECF No. 6.) On August 11, 2017, Plaintiff's
first amended complaint was filed. (ECF No. 10.) On August
31, 2017, without first seeking leave of the Court, Plaintiff
lodged another amended complaint. (ECF No. 11.) The Court
screened the more recent of the two amended complaints. (ECF
No. 11). On October 19, 2017, the Court dismissed the first
amended complaint with thirty days leave to amend. (ECF No.
12.) Plaintiff requested and was granted one extension of
time. (ECF Nos. 13; 14.) On December 8, 2017, Plaintiff filed
a second amended complaint, which is now before the Court for
screening. (ECF No. 15.)
reasons set forth below, the Court finds Plaintiff has stated
no cognizable claims for relief. The Court recommends that
Plaintiff's second amended complaint be dismissed with
prejudice. The undersigned directs the Clerk of Court to
assign a District Judge to this action to rule upon the
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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 fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, 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. §
1983 provides a cause of action against any person who
deprives an individual of federally guaranteed rights
“under color” of state law. 42 U.S.C. §
1983. 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 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(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.
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). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
is currently incarcerated at the California State Prison, Los
Angeles County in Lancaster, California, however he complains
of acts that occurred at the California State Prison,
Corcoran in Corcoran, California (“CSPC”).
Plaintiff brings this action against three Defendants: Dr.
Chita Buenafe, a dentist; N. Flores, a dental assistant; and
E. Clark, a medical doctor who reviewed Plaintiff's
inmate appeals. Plaintiff alleges that Defendants violated
the Eighth Amendment.
Original Complaint and Screening Order
original complaint, Plaintiff brought an Eighth Amendment
claim against Defendants Buenafe and Flores (as well as a
third Defendant who is no longer named in this action) for
Eighth Amendment violations. (ECF No. 1.) In that version of
the complaint, Plaintiff alleged that Defendants Buenafe and
Flores used the dental procedure to implant electrodes in
Plaintiff's mouth and used them to track and control him.
(ECF No. 1.) In the Court's first screening order, the
complaint was dismissed as implausible. (ECF No. 6.)
Plaintiff was advised that to the extent he actually suffered
serious pain after his March 10, 2014 dental appointment, and
Defendants were deliberately indifferent to that pain,
Plaintiff would be granted leave to amend to demonstrate how
Defendants should have but failed to address his objectively
serious medical needs. (Id.)
First Amended Complaint and Screening Order
first amended complaint, Plaintiff alleged that Defendants
Buenafe and Flores performed dental surgery on him on March
10, 2014. As a result of the surgery, his left orbital bone
was fractured, leaving him in serious pain. Plaintiff
verbally complained to defendants about the pain and filed an
inmate appeal. Defendant Clark reviewed Plaintiff's
inmate appeal and ordered an October 2014 MRI which revealed
the left orbital fracture. Despite the MRI findings and