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Michael C. Tierney, #A0201434 v. Thomas Atkin

May 13, 2013

MICHAEL C. TIERNEY, #A0201434, PLAINTIFF,
v.
THOMAS ATKIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DISMISSING SECOND AMENDED COMPLAINT UNDER 28 U.S.C. ) §§ 1915(e)(2) and 1915(A)(b)(1) ) AND DENYING PENDING MOTIONS

Before the court is pro se Plaintiff Michael C. Tierney's second amended prisoner civil rights complaint brought pursuant to 42 U.S.C. § 1983. See Second Amended Compl. ("SAC"), ECF No. 12. Tierney alleges that Halawa Correctional Facility ("HCF") dentist Thomas Atkin, D.D.S., "Unknown Dentist," and dental assistants Dawn West and "Sandy," violated his constitutional rights when they allegedly denied him dental care.

Having screened the SAC pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), the court finds that Plaintiff again fails to state a claim. The SAC is DISMISSED with leave to amend.

I. PLAINTIFF'S ALLEGATIONS

In his previous complaints, Plaintiff claimed that Dr. Atkin extracted two teeth on March 8, 2013, but allegedly left tooth fragments in his gums, resulting in continuing pain. See Compl., ECF No. 1, First Amended Compl. ("FAC"), ECF No. 7. Plaintiff said that Dr. Atkin removed the fragments on March 16, 2013, but he remained in pain because another tooth required a root canal, a post, and a crown. Plaintiff claimed that he asked Dr. Atkin and West to perform this dental work treatment on March 16, 2013, but they told him they "don't fix teeth," apparently meaning they were not equipped to restore the other tooth, and told him to ask the "other dentist." Id. PageID #24. Plaintiff immediately filed this suit. See Compl., ECF No. 1 (signed March 17, 2013, received and filed March 19, 2013).

In his SAC, Plaintiff adds two new defendants, "Sandy," and "Unknown Dentist," but omits any facts supporting his claims, including the dates and details that he included in his first two complaints. Plaintiff now simply alleges that Dr. Atkin, West, Sandy, and Unknown Dentist have "repeatedly denied Plaintiff dental care and I am in extreme pain." SAC, ECF No. 12 PageID #65-68. Plaintiff claims that he "needs his teeth cleaned and implants for the teeth that Atkin pulled." Id. PageID #65. Moreover, despite his earlier statements that Atkin and West saw him several times in March, Plaintiff now alleges that "[U]nknown dentist has delayed dental treatment for 3 years." Id. PageId #67. Plaintiff also states that "the dental assistance [sic] that cleans teeth, shattered teeth and knock out fillings during a cleaning in March of 2010 and I am in extreme pain." Id. PageID #68. Plaintiff has pursued his claim for dental implants, root canals, and other restorative care repeatedly in other cases, and has also stated in previous actions that the reason Dr. Atkin was required to extract his two teeth was because a prison dental assistant damaged his fillings in 2010.*fn1

II. STATUTORY SCREENING

The court must screen all civil actions brought by prisoners relating to prison conditions and/or seeking redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if its claims are legally frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1).

A complaint may be dismissed for failure to state a claim if it (1) lacks a cognizable legal theory; or (2) contains insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading 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). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. A complaint fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"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. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. (quoting Fed. Rule Civ. Proc. 8(a)(2)).

The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Hebbe, 627 F.3d at 342 (quoting Erickson, 551 U.S. at 94). Leave to amend should be granted unless it appears that amendment is futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies).

III. DISCUSSION

"To sustain an action under section 1983, a plaintiff must show '(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.'" Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated and remanded ...


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