United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
is a California prisoner proceeding pro se with an action for
violation of civil rights under 42 U.S.C. § 1983. On
October 11, 2018, the court screened plaintiff's amended
complaint as the court is required to do under 28 U.S.C.
§ 1915A(a). The court found that plaintiff could proceed
on a claim arising under the Eighth Amendment against
defendant Dr. Ashok Veeranki “to the extent plaintiff
alleges [Dr. Veeranki was] at least deliberately indifferent
to a jaw condition suffered by plaintiff by failing to
provide plaintiff with treatment or a referral for
treatment.” Dr. Veeranki has filed a motion to dismiss
for failure to state a claim upon which relief can be granted
under Federal Rule of Civil Procedure 12(b)(6).
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[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).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
considering whether a complaint states a claim upon which
relief can be granted, the court must accept the allegations
as true, Erickson v. Pardus, 551 U.S. 89, 93-94
(2007), and construe the complaint in the light most
favorable to the plaintiff, see Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). Review is generally limited to the
complaint. Cervantes v. City of San Diego, 5 F.3d
1273, 1274 (9th Cir. 1993). Of course, the court
“draw[s] on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
allegations in plaintiff's amended complaint which are
relevant to plaintiff's remaining claim against Dr.
Veeranki are as follows:
1. Dr. Veeranki is an oral surgeon employed at San Joaquin
2. On July 1, 2016, plaintiff was transported from California
State Prison, Sacramento (CSP-Sac.) to San Joaquin General
for surgery on a fractured jaw.
3. The next day, plaintiff was informed by Dr. Veeranki that
he would be conducting the surgery. When the surgery was
performed, Dr. Veeranki reduced the fracture, then wired
plaintiff's jaw shut.
4. Plaintiff was then discharged back to CSP-Sac.
5. On July 26, 2016, plaintiff was transported to Manteca to
see Dr. Veeranki for a follow-up visit. In his amended
complaint, plaintiff details several issues he had with his
jaw between surgery and his first follow-up. Plaintiff
alleges that he specifically informed Dr. Veernaki at the
first follow-up appointment that the night he had surgery, he
felt his repaired bone “g[i]ve way.” Plaintiff
also told Dr. Veeranki that since the surgery he had
experienced varying degrees of pain, jaw instability and a
sensation similar to having gauze in his mouth. Dr. Veeranki
indicated to plaintiff that “plaintiff was healing
well, but in pain.”
6. On August 17, 2016 plaintiff was transported to San
Joaquin General for a second follow-up visit with Dr.
Veeranki. Plaintiff again informed Dr. Veeranki he was
experiencing a sensation similar to having gauze stuck in his
cheek, that his jaw had been unstable, it felt as if his jaw
was still broken, and he had continuously experienced varying
levels of pain.
7. In response, Dr. Veeranki told plaintiff that the issues
with his jaw were all part of being in prison and if he did
not want his jaw to hurt, he should not commit crimes. Dr.
Veeranki then removed the screws and wires from
plaintiff's mouth, informed plaintiff that Dr.
Veeranki's treatment was over and indicated that
plaintiff had healed well.
8. On October 26, 2016, plaintiff returned to San Joaquin
General for evaluation by Dr. Alexander Ierokmos. A CT scan
was performed. Dr. Ierokmos informed plaintiff that his jaw
had healed in the position it was prior to surgery and that
plaintiff suffered from pain at that point at least partially
due to trapped nerves. Plaintiff was also informed by Dr.
Ierokmos that to correct the issue “major corrective