Bettencourt v. Parks et al
Filing
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ORDER VACATING 35 Findings and Recommendations; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims; Fourteen (14) Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 10/11/2018. Referred to Judge Dale A. Drozd.(Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GARY RAY BETTENCOURT,
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Plaintiff,
v.
L. PARKER, et al.,
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Defendants.
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Case No. 1:16-cv-00150-DAD-BAM (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF No. 35)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
CERTAIN CLAIMS
FOURTEEN (14) DAY DEADLINE
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I.
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Plaintiff Gary Ray Bettencourt (“Plaintiff”) is a state prisoner proceeding pro se and in
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Background
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On September 19, 2017, the Court issued findings and recommendations recommending
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that this action be dismissed for failure to state a cognizable claim upon which relief may be
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granted. (ECF No. 35.)
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On October 20, 2017, Plaintiff timely filed objections. (ECF No. 36.) Plaintiff states in
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his objections that at the time of the dental procedures at issue in this action, he only required a
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lower partial denture to replace two lower large teeth in the back of his jaw. However, Plaintiff
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was told that he was required to pass a teeth cleaning test before the lower partial denture could
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be manufactured. Plaintiff allowed them to clean his teeth, and that was when the two dentists
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damaged his eight upper teeth that were good and healthy, but which now need to be pulled out.
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(Id. at 2–3.)
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Pursuant to Plaintiff’s objections, the Court finds it appropriate to vacate the September
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19, 2017 findings and recommendations recommending dismissal for failure to state a claim.
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Having screened Plaintiff’s first amended complaint pursuant to 28 U.S.C. § 1915A, the Court
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finds that it states a claim for deliberate indifference in violation of the Eighth Amendment
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against Defendant Crooks for pulling two teeth that did not need to be pulled, and against
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Defendants Parker and Guzman for filing down six healthy teeth with a dental tool used for
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drilling cavities. However, the first amended complaint fails to state any other cognizable claims.
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II.
Screening Requirement
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C.
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§ 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken
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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,
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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,
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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially
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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each
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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks
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omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that
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a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of
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satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572
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F.3d at 969.
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Further, under § 1983, Plaintiff must demonstrate that each defendant personally
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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2009).
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The Ninth Circuit has held that “a person ‘subjects’ another to the deprivation of a constitutional
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right, within the meaning of section 1983, if he does an affirmative act, participates in another’s
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affirmative acts, or omits to perform an act which he is legally required to do that causes the
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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Plaintiff’s Allegations
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III.
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Plaintiff is currently housed at Mule Creek State Prison. The events in the complaint are
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alleged to have occurred while Plaintiff was housed at the California Substance Abuse Treatment
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Facility (“CSATF”). Plaintiff names as defendants L. Parks, DDS; H. Crooks, DDS, and Dental
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Assistant L. Guzman.
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Though the first amended complaint is difficult to decipher, Plaintiff appears to allege that
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during two dental appointments L. Parker and L. Guzman claimed to be cleaning Plaintiff’s teeth,
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and instead filed down six healthy teeth with a dental tool used for drilling cavities. In addition,
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H. Crooks pulled out two healthy teeth that did not need to be pulled, when instead only one tooth
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needed capping. An unspecified person also injected something into Plaintiff’s gums with a
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syringe needle.
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Plaintiff alleges claims for medical malpractice, deliberate indifference, and intentional
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torts. Plaintiff requests the garnishment of Defendants’ wages, monetary damages, and
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declaratory relief.
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IV.
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Discussion
A. Federal Rule of Civil Procedure 8
Pursuant to Rule 8, 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). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must
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set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
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its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations
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are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss,
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572 F.3d at 969.
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Plaintiff’s first amended complaint is short, but is not a plain statement of his claims. It
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proceeds in a disjointed and confusing manner. The Court has attempted, in the summary above,
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to separate Plaintiff’s factual allegations from his unnecessary legal arguments, citations, and
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legal conclusions. Nevertheless, it is difficult to follow Plaintiff’s factual allegations due to the
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complaint’s redundancy and disorganization. The complaint also attaches several pages of
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exhibits which are not explained, and contains references to exhibits which are not attached.
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Plaintiff has previously been provided with the applicable legal standards to cure these
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deficiencies, and further leave to amend is not warranted. However, as discussed below, the
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Court finds that Plaintiff has stated some cognizable claims, and those claims will be permitted to
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proceed.
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B. Eighth Amendment – Deliberate Indifference to Serious Medical Needs
“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,
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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for
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deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by
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demonstrating that failure to treat a prisoner’s condition could result in further significant injury
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or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need
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was deliberately indifferent.” Jett, 439 F.3d at 1096.
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Deliberate indifference is shown where the official is aware of a serious medical need and
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fails to adequately respond. Simmons v. Navajo Cty., 609 F.3d 1011, 1018 (9th Cir. 2010).
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“Deliberate indifference is a high legal standard.” Id. at 1019; Toguchi v. Chung, 391 F.3d 1051,
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1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an
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inference that “a substantial risk of serious harm exists” and the official must make the inference.
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Farmer v. Brennan, 511 U.S. 825, 837 (1994). Moreover, negligence, inadvertence, or
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differences of medical opinion between the prisoner and health care providers, however, do not
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violate the Eighth Amendment. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996);
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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Lyons v. Busi, 566 F.Supp.2d 1172, 1191–92
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(E.D. Cal. 2008).
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At the pleading stage, Plaintiff has stated cognizable claims for deliberate indifference
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against Defendant Crooks for extracting two healthy teeth that did not need to be pulled, and
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against Defendants Parker and Guzman for filing down six healthy teeth when they were
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supposed to be performing a cleaning only. Plaintiff has failed to state any other claims for
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deliberate indifference.
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C. State Law Claims
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Insofar as Plaintiff has alleged state law claims for various forms of negligence and
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malpractice by defendants, he has failed to allege compliance with the Government Torts Claims
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Act (“Act”). The Act requires that a party seeking to recover money damages from a public
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entity or its employees submit a claim to the entity before filing suit in court, generally no later
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than six months after the cause of action accrues. Cal. Gov’t Code §§ 905, 911.2, 945, 950.2
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(emphasis added). When a plaintiff asserts a claim subject to the Act, he must affirmatively
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allege compliance with the claim presentation procedure, or circumstances excusing such
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compliance, in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007).
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Plaintiff has not done so here.
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In the first amended complaint, Plaintiff alleges that he filed a Government Claims Board
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application within the applicable time limits, but that the application was denied. (ECF No. 33, p.
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9.) Plaintiff then refers to several exhibits that are not attached to the first amended complaint,
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but do appear to be attached to the original complaint. (ECF No. 1, pp. 15–21.) The exhibits
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referenced include a letter from the Government Claims Program stating that documents
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submitted by Plaintiff failed to comply with Government Code section 905.2(c). (Id. at 16.) The
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remaining documents appear to be those originally submitted to the Government Claims Program,
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and there is no indication that Plaintiff ever attempted to file a corrected claim within the time
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allowed.
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D. Additional Relief
Plaintiff seeks a declaration that his rights were violated. “A declaratory judgment, like
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other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised
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in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948).
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“Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and
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settling the legal relations in issue nor terminate the proceedings and afford relief from the
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uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353,
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1357 (9th Cir. 1985).
If this action reaches trial and the jury returns a verdict in favor of Plaintiff, then that
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verdict will be a finding that Plaintiff’s constitutional rights were violated. Accordingly, a
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declaration that any defendant violated Plaintiff’s rights is unnecessary.
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With respect to Plaintiff’s request that Defendants’ wages be garnished, this remedy will
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not be granted. If Plaintiff prevails on a claim for monetary damages, he will receive a judgment
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in the amount awarded.
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V.
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Based on the foregoing, the Court HEREBY ORDERS that the findings and
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Conclusion and Recommendation
recommendations issued on September 19, 2017, (ECF No. 35), are VACATED.
Further, the Court finds that Plaintiff has stated cognizable claims against Defendants
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Crooks, Parker, and Guzman for deliberate indifference to serious medical needs in violation of
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the Eighth Amendment. However, Plaintiff has failed to state any other cognizable claims.
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Despite being provided with the relevant pleading and legal standards, Plaintiff has been unable
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to cure the deficiencies in his complaint and thus further leave will not be granted. Lopez v.
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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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For the reasons stated, it is HEREBY RECOMMENDED as follows:
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1. This action proceed on Plaintiff’s claims of deliberate indifference in violation of the
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Eighth Amendment against Defendant Crooks for pulling two teeth that did not need
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to be pulled, and against Defendants Parker and Guzman for filing down six healthy
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teeth with a dental tool used for drilling cavities, as set forth in Plaintiff’s first
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amended complaint filed on September 5, 2017; and
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2. All other claims be dismissed from this action for failure to state a claim.
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These Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendation, the parties may file
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written objections with the court. The document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within
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the specified time may result in the waiver of the “right to challenge the magistrate’s factual
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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
October 11, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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