Tierney v. Atkin

Filing 11

ORDER DISMISSING FIRST AMENDED COMPLAINT re 7 , 10 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/30/13. "1. The First Amended Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). 2. Plaintiff is granted leave to file a second amended complaint on or before May 30, 2013, in compliance with this Order. If Plaintiff fails to do so, this action shall be AUTOMATICALLY DISMISSED, without further notice and the Cle rk of Court SHALL enter judgment stating that the dismissal was pursuant to 28 U.S.C. § 1915. 3. The Clerk of Court is DIRECTED to forward a copy of the court's prisoner civil rights complaint form to Plaintiff so that he may comply with this Order. 4. All pending motions are DENIED. Plaintiff is NOTIFIED that he may not file, and the court will take no action on, any motions he files until he has submitted a sufficient amended complaint that cures the deficiencies noted herein.&q uot; ( Motion terminated: 10 MOTION for Emergency Dental Treatment filed by Michael C. Tierney.) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notificat ions received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael C. Tierney shall be served by first class mail at the address of record on May 1, 2013. A copy of the court's prisoner civil rights complaint form shall be included in the mailing to Mr. Tierney.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,
#A0201434,
Plaintiff,
vs.
THOMAS ATKIN, DAWN WEST,
Defendants.
____________________________

CIV. NO. 13-00136 SOM/RLP

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ORDER DISMISSING FIRST AMENDED
COMPLAINT

ORDER DISMISSING FIRST AMENDED COMPLAINT
Before the court is pro se Plaintiff Michael C.
Tierney’s amended prisoner civil rights complaint brought
pursuant to 42 U.S.C. § 1983.
ECF No. 7.

See First Amended Compl. (“FAC”),

Tierney alleges that a Halawa Correctional Facility

(“HCF”) dentist, Thomas Atkin, D.D.S., and dental assistant, Dawn
West, violated his constitutional rights when they allegedly
denied him dental care on March 16, 2013.

Id., Count II.

Having screened the FAC pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), the court finds that it fails to
state a claim as written.

The FAC is DISMISSED with leave to

amend as set forth below.
I. PLAINTIFF’S ALLEGATIONS
Plaintiff claims that, on March 8, 2013, Dr. Atkin
extracted two teeth, but left tooth fragments in his gums,
resulting in the continuation of Plaintiff’s pain.

Plaintiff

alleges that he returned to Dr. Atkin on March 16, 2013, and that

Dr. Atkin “removed some of the fragments, but plaintiff is still
in extreme pain, because he still has a tooth ache on tooth
number 31, and plaintiff needs a root canal, a post and a crown.”
FAC (Count I), ECF No. 7 PageID #24.

Plaintiff claims that he

“requested dental treatment [on March 16, 2013] but [Atkin and
West] refused to treat plaintiff[’s] tooth ache,” allegedly
telling him that they “don’t fix teeth,” and that he would have
to ask the “other dentist.”
the next day, March 17, 2013.

Id.

Plaintiff commenced this action

See Compl., ECF No. 1 (signed

March 17, 2013, received and filed March 19, 2013).
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).
2

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.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

“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.”
679.

Id. at

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)).

3

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.’”
342 (quoting Erickson, 551 U.S. at 94).

Hebbe, 627 F.3d at

Leave to amend should be

granted unless it appears that amendment is futile.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

Lopez v.

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 on other grounds, 129 S.

4

Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
A.

Plaintiff’s Right to Dental Care
Deliberate indifference to a prisoner’s serious medical

needs presents a cognizable claim for a violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment.
Farmer v. Brennan, 511 U.S. 825, 847 (1994); Estelle v. Gamble,
429 U.S. 97, 104 (1976).

“A medical need is serious if the

failure to treat the prisoner’s condition could result in further
significant injury or the unnecessary and wanton infliction of
pain.”

Dickey v. Vargo, 2004 WL 825624, at *2 (D. Or. Feb. 27,

2004) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.
1992), overruled on other grounds, WMX Tech., Inc. v. Miller, 104
F.3d 1133, 1136 (9th Cir. 1997) (further citations omitted)).
“‘Dental care is one of the most important medical
needs of inmates.’”

Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th

Cir. 1989) (requiring that prisoners be provided with ready
access to dental care) (quoting Ramos v. Lamm, 639 F.2d 559, 576
(10th Cir. 1980)).
B.

Analysis
Plaintiff does not claim that Defendants denied him

dental care.

Rather, he relates that Dr. Atkin extracted two

teeth, and that, when Plaintiff continued experiencing pain, Dr.
Atkin treated him for that pain within a week.
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The FAC is silent

as to whether Defendants gave (or denied) Plaintiff pain
medication after the extractions, during the intervening week
between appointments, or thereafter.

The facts do not therefore

show that Defendants ignored Plaintiff’s need for dental care
with deliberate indifference to his health or the wanton
infliction of pain.
In addition, Defendants’ response to Plaintiff’s
request for a root canal on tooth No. 31 and a bridge or implants
to replace his extracted teeth (a request Plaintiff allegedly
made while being treated for pain caused by the extraction), does
not suggest that Defendants were deliberately indifferent to his
pain or need for dental care.

Their statement that they don’t

“fix teeth, you have to ask the other dentist” implied only that
they were treating Plaintiff’s pain resulting from the
extractions and were not able to perform extensive restorative
dental work at that time.

Their statement reasonably informed

Plaintiff that he had to seek restorative treatment for the
extracted teeth and a root canal procedure for tooth No. 31
through the prison’s normal, nonemergency dental care channels.
Because Plaintiff filed suit the next day, however, the FAC does
not reflect the prison’s response to any properly made request
for dental treatment or restorative care.

Had he submitted such

a request, Plaintiff might have been scheduled for treatment, or,
if such a request was denied, the FAC might show that someone,

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not necessarily Defendants, acted with deliberate indifference to
his serious dental needs.
The FAC provides nothing substantiating Plaintiff’s
claim that Defendants were deliberately indifferent to his pain
or serious need for dental care.

Indeed, Plaintiff has made

similar claims numerous times and has long sought restorative
dental care from an outside provider.1

Plaintiff fails to

adequately inform the parties and court of the basis for his
claim, or raise an inference greater than the merest possibility
that he is entitled to relief.

See Fontana v. Haskin, 262 F.3d

871, 876-77 (9th Cir. 2001) (“Specific legal theories need not be
pleaded so long as sufficient factual averments show that the
claimant may be entitled to some relief.”).

Plaintiff’s claim

that Defendants Dr. Atkin and West denied him dental care with
deliberate indifference to his serious medical needs fails to
state a claim and is DISMISSED.
C.

Eleventh Amendment Immunity
State officials sued in their official capacities are

not persons subject to civil rights suits under § 1983.

1

Will v.

See Tierney v. Hamada, 1:12-cv-00117 SOM; Tierney v.
Unnamed Dentist, 1:11-cv-00369 JMS; Tierney v. Okamoto, 1:11-cv00800 DAE. In Hamada, this court conducted an evidentiary
hearing regarding Plaintiff’s claims concerning tooth No. 31, and
the two teeth that have now been extracted. See 1:12-cv-00117,
Order, ECF No. 76 (revoking in forma pauperis). In that action,
Plaintiff affirmatively refused extractions and restorative
treatment for tooth No. 31. See id.
7

Mich. Dept. of State Police, 491 U.S. 58, 71 (1989); see also
Seminole Tribe of Florida v. Florida, 517 U .S. 44, 53 (1996);
Hafer v. Melo, 502 U.S. 21 (1991) (holding that state officers
acting in their official capacities are immune from suit under
the Eleventh Amendment to the same extent as the government
agency that employs them).

The Eleventh Amendment bars

Plaintiff’s damage claims against Defendants in their official
capacities, and those claims are DISMISSED.
IV.

LEAVE TO AMEND

Plaintiff’s First Amended Complaint is DISMISSED.
Plaintiff may file a proposed second amended complaint on or
before May 30, 2013, curing the specific deficiencies noted
above.

The second amended complaint must contain short, plain

statements providing sufficient facts to support his claim that
Defendants denied him dental care with deliberate indifference to
his health or serious medical needs.
The second amended complaint must clearly designate
that it is the “Second Amended Complaint.”

It must be retyped or

rewritten in its entirety on court-approved forms and may not
incorporate any part of the original Complaint by reference.
Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992).

Any cause of

action that was raised in the original complaint is waived if it
is not raised in an amended complaint.
565, 567 (9th Cir. 1987).
8

King v. Atiyeh, 814 F.2d

V.

28 U.S.C. § 1915(g)

If Plaintiff fails to file an amended complaint
correcting the deficiencies identified in this Order, this
dismissal may count as a “strike” under the “3-strikes” provision
of 28 U.S.C. § 1915(g).

Under the 3-strikes provision, a

prisoner may not bring a civil action or appeal a civil judgment
in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in
any facility, brought an action or appeal in
a court of the United States that was
dismissed on the grounds that it is
frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g).
VI.
1.

CONCLUSION

The First Amended Complaint is DISMISSED for

failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(a) .
2.

Plaintiff is granted leave to file a second amended

complaint on or before May 30, 2013, in compliance with this
Order.

If Plaintiff fails to do so, this action shall be

AUTOMATICALLY DISMISSED, without further notice and the Clerk of
Court SHALL enter judgment stating that the dismissal was
pursuant to 28 U.S.C. § 1915.

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3.

The Clerk of Court is DIRECTED to forward a copy of

the court’s prisoner civil rights complaint form to Plaintiff so
that he may comply with this Order.
4.

All pending motions are DENIED.

Plaintiff

is NOTIFIED that he may not file, and the court will take no
action on, any motions he files until he has submitted a
sufficient amended complaint that cures the deficiencies noted
herein.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 30, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Tierney v. Atkin, et al., 1:13-cv-00136 SOM/KSC;G:\docs\prose attys\Scrng\DMP\2013\Tierney 13-136
som (FAC dsm FTSC).wpd

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