Stang v. United States of America et al
OPINION AND ORDER ON MOTION TO DISMISS: For the foregoing reasons, I grant defendants Motion to Dismiss 22 and grant plaintiffs Motion to Compel 29 . Plaintiff has leave to amend his Complaint. If plaintiff fails to amend the Complaint with in 60 days from the date of this order, I will dismiss the action for failure to state a claim. The Court will advise plaintiff as to service of process after any First Amended Complaint is filed. Signed on 12/21/2016 by Judge Garr M. King. (copy mailed to plaintiff) (kms)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Case No. 3:15-cv-02318-KI
JOE DEE STANG,
OPINION AND ORDER ON
MOTION TO DISMISS
UNITED STATES OF AMERICA, RYAN
HUNT, DMD F.C.I. Sheridan, MR.
KELSCH, DMD F.C.I. Sheridan, E.
BESMARTEAU, Contract E.F.D.A., F.C.I.
Sheridan, MR. STAR, RDH F.C.I. Sheridan,
C. LARDION, RDH F.C.I. Sheridan,
Joe Dee Stang
P.O. Box 5000
Sheridan, OR 97378
Pro se Plaintiff
Page 1 - OPINION AND ORDER ON MOTION TO DISMISS
Billy J. Williams
United States Attorney
District of Oregon
Jared D. Hager
Assistant United States Attorney
1000 SW Third Ave., Ste. 600
Portland, OR 97204-2902
Attorneys for Defendants
Pro se plaintiff Joe Dee Stang brings a civil rights complaint against the United States
and various dental staff at F.C.I. Sheridan, where he has been incarcerated. Pending before me is
a Motion to Dismiss filed by defendants United States of America, Ryan Hunt, Mr. Kelsch, and
C. Laridon1 (ECF No. 22) (hereinafter referred to as the “Federal defendants”)2 as well as
plaintiff’s Motion to Compel (ECF No. 29) in which plaintiff asks for time to serve some of the
defendants. For the following reasons, I grant the defendants’ motion, but allow plaintiff time to
amend his Complaint. I also provide instructions on serving the remaining unserved defendants.
Plaintiff alleges two claims: an Eighth Amendment claim for cruel and unusual
punishment based on delayed dental treatment, and a Federal Tort Claims Act claim alleging
negligence in his dental treatment.
Plaintiff misspelled defendant Laridon’s name as Lardion in his Complaint. I refer to her
The Federal defendants have not filed an appearance on behalf of defendant “E.
Besmarteau,” who plaintiff also refers to as “E. Desmarteau” in the body of his Complaint. The
defendant has been properly served, but has not answered the Complaint. Additionally, the
Federal defendants have not filed an appearance on behalf of Mr. Star, who has not been properly
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Plaintiff alleges BOP dental staff told him at his initial dental screening on March 12,
2012 that he needed a night guard due to his teeth grinding. Plaintiff requested a night guard on
Attached to his Complaint are several staff responses to his requests for dental care.
On July 2, 2013, Laridon informed him that he had been on the care list as of March 12,
2012, that they were working on early 2010 now, that his name would be placed on call out when
his name came up, and that he should go to dental sick call if a tooth bothered him. Ex. 1, at 1.3
On September 9, 2013, he was told that he was on the “routine care list” and to attend
sick call if he had dental issues. Ex. 1, at 2. The writer’s name is unintelligible.
On November 6, 2013, he was told that he should attend sick call on Tuesdays or Fridays.
Ex. 1, at 3. The same person told plaintiff on February 19, 2014, that he was on the waiting list
as of March 12, 2012. Ex. 1, at 6. The writer’s name is unintelligible.
On June 4, 2014, Hunt informed him to come to dental sick call “to be evaluated if a
mouth guard is medically necessary.” Ex. 1, at 4. Hunt examined and treated plaintiff on June 9,
2014. He examined tooth #3, found it to be fractured, applied provisional restorative material to
the tooth, and informed plaintiff “that he can return to have the other teeth repaired and after the
other teeth are repaired he can come to dental sick call for the fabrication of a night guard to
prevent more teeth from fracturing.” Ex. 2, at 2.
Although plaintiff did not number the pages constituting Exhibit 1, I refer to them in the
order in which they appear on the docket as pages 1-15.
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Hunt responded to plaintiff on August 22, 2014, explaining that plaintiff would not obtain
a permanent filling until his name came up on the National Routine Care Waiting List. Until
then, plaintiff could obtain temporary restorations at sick call. Ex. 1, at 5.
E. Desmarteau responded to plaintiff’s inquiry about routine care on November 18, 2014,
explaining that plaintiff was on the waiting list. Ex. 1, at 7. Desmarteau provided the identical
response on November 19, 2014. Ex. 1, at 8.
On February 25, 2015, Hunt responded to plaintiff’s concern that “I grind my teeth . . .yet
your department will not give me a mouthguard because you say you can’t give me one untill
[sic] I have permanent fillings” by directing him to dental sick call. Ex. 1, at 9.
Desmarteau informed plaintiff on April 3, 2015 that his name was on a waiting list. Ex.
1, at 10. Desmarteau sent the same message to plaintiff on April 24, 2015. Ex. 1, at 11.
On April 30, 2015, plaintiff was told he could obtain a temporary night guard through
dental sick call. Ex. 1, at 13.
Plaintiff received a night guard on June 9, 2015. Compl. ¶ 25.
In July 2015, plaintiff complained that he had been waiting for years to have his teeth
fixed and that they are now “ground down to nothing[.]” Ex. 1, at 14. On July 24, 2015,
Desmarteau responded, “Your dental issues will be addressed.” Desmarteau responded to
plaintiff in a similar fashion on September 23, 2015.
Plaintiff alleges “continued pain due to exposed nerves from fractured teeth” and that no
attempt has been made to repair the damage caused by plaintiff grinding his teeth. Compl. ¶ 26.
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Although a plaintiff need not allege detailed facts, a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) will be granted if the pleading fails to provide “enough facts to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim rises above the speculative level “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The Court is required to “assume the
veracity” of all well-pleaded factual allegations. Id. at 678. Thus, “for a complaint to survive a
motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that
content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S.
Secret Serv., 572 F.3d 962, 929 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 663). A complaint “may
not simply recite the elements of a cause of action, but must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se complaints are construed liberally and may only be dismissed “‘for failure to state
a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’” Engebretson v. Mahoney, 724 F.3d 1034, 1037 (9th
Cir. 2013) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)). The court should
allow a pro se plaintiff to amend the complaint unless it would be impossible to cure the
deficiencies of the complaint by amendment. Johnson v. Lucent Tech. Inc., 653 F.3d 1000, 1011
(9th Cir. 2011).
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A complaint is subject to dismissal for insufficient service of process. Fed. R. Civ. P.
12(b)(5). A party has 120 after filing a complaint to serve all defendants. Fed. R. Civ. P. 4(m).
Absent good cause for failure to serve a defendant within 120 days, the court may either dismiss
the action or order service within a specified time. Id.
Eighth Amendment Bivens Claim
Plaintiff alleges a Bivens claim against the individual federal defendants. Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (plaintiff
may sue a federal officer in his or her individual capacity for damages for violating the plaintiff’s
constitutional rights). A Bivens action and actions under 42 U.S.C. § 1983 are “identical save for
the replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v.
Lawn, 940 F.2d 406, 409 (9th Cir. 1991). “Because vicarious liability is inapplicable to Bivens
and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
The treatment a prisoner receives in prison and the conditions of his confinement are
subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993).
As the Supreme Court has explained,
The [Eighth] Amendment also imposes duties on these officials, who must
provide humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care, and must take
reasonable measures to guarantee the safety of the inmates[.]
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Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and quotations omitted). A
prison official violates a prisoner’s Eighth Amendment rights only when the claim satisfies both
an objective and subjective inquiry. Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000).
To meet the objective element, in the context of a claim for failure to provide medical
care, plaintiff must establish a “serious medical need.” Estelle v. Gamble, 429 U.S. 97, 104
(1976). A serious medical need is the kind of injury that “a reasonable doctor or patient would
find important and worthy of comment or treatment; . . . that significantly affects an individual’s
daily activities; or [causes] chronic and substantial pain.” Lopez, 203 F.3d at 1131 (citation
omitted). The subjective inquiry requires a showing that corrections officers acted with
deliberate indifference to plaintiff’s serious medical needs. Id. at 1132. “[A] prison official
cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate health or
safety . . . .” Farmer, 511 U.S. at 837.
At this pleading stage, I find plaintiff’s allegations are sufficient to establish a serious
medical need. See Compl. 28(iii) (plaintiff alleges a more than three-year delay in treating his
dental needs, causing “continuous pain and discomfort that could have been avoided by issuing
prompt dental care, and could have been mitigated by promptly issuing Plaintiff a night guard to
prevent further erosion and fracturing of his teeth”); Hunt v. Dental Dep’t, 865 F.2d 198, 200-01
(9th Cir. 1989) (triable issue of fact when inmate went eight months without dentures, resulting in
severe pain, permanent teeth damage, and discomfort eating food).
The Federal defendants contend plaintiff has not alleged sufficient facts directed at the
personal involvement or deliberate indifference of defendants Hunt, Kelsch, and Laridon.
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Deliberate indifference “may appear when prison officials deny, delay or intentionally interfere
with medical treatment, or it may be shown by the way in which prison physicians provide
medical care.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). Plaintiff alleges that
Kelsch, Laridon, Desmarteau and Star are members of the dental staff at F.C.I. Sheridan and are
responsible for evaluating and treating the dental needs of the inmates. Compl. ¶¶ 7 (Kelsch), 10
(Laridon), 8 (Desmarteau), and 9 (Star).4 Plaintiff does not allege specific facts as to how
Kelsch, Laridon, Desmarteau or Star were deliberately indifferent to plaintiff’s dental needs.
Allegations applicable to a collective group of defendants are insufficient. Iqbal, 556 U.S. at
Presumably Kelsch and Star are responsible for one or more of the responses to plaintiff’s
requests for dental care, but it is not apparent which of the responses attached to plaintiff’s
Complaint are theirs.5 Laridon responded to plaintiff on only one occasion, telling plaintiff on
July 2, 2013 that his name was on a waiting list and that he should come to dental sick call if he
was having problems with his teeth. Ex. 1, at 1. There are six communications from Desmarteau
(dated 11/18/2014, 11/19/2014, 4/3/2015, 4/24/2015, 7/24/2015, and 9/23/2015). Notably, in
none of his communications to any of these defendants does plaintiff complain of pain, inability
to eat, bleeding gums, or any other side effects of the failure to obtain a mouth guard or the
dental care he requested. In other words, plaintiff has not alleged that the individual defendants
Although the Federal defendants do not represent Desmarteau or Star, the pleading flaw
applies to them as well. I have discretion to review the sufficiency of the claim pursuant to 28
U.S.C. § 1915(e)(2)(B).
I may consider allegations contained in the pleadings, as well as exhibits attached to the
complaint, in reviewing a motion to dismiss. Rosati v. Igbinoso, 791 F.3d 1037, 1039 n.3 (9th
Page 8 - OPINION AND ORDER ON MOTION TO DISMISS
knew of and disregarded an excessive risk to plaintiff’s dental health. See Toguchi v. Chung, 391
F.3d 1051, 1057-58 (9th Cir. 2004) (prison official is deliberately indifferent if knows of and
disregards an excessive risk to inmate’s health).
Finally, plaintiff alleges Hunt examined and treated plaintiff on June 9, 2014 and that
Hunt told plaintiff he could return to have other teeth repaired. Plaintiff attached
communications from Hunt dated June 4, 2014 (plaintiff saw Hunt five days later), August 22,
2014 (explaining to plaintiff that he needed to use sick call until his name came up on the
National Routine Care Waiting List), and February 25, 2015 (informing plaintiff to come to sick
call for a night guard). In this last communication, plaintiff did alert Hunt that he was having
“headaches, jaw hurts, and ear aches” due to grinding his teeth. Ex. 1, at 9. Hunt responded by
inviting plaintiff to come to sick call to be evaluated for a mouth guard. These allegations alone
are simply insufficient to demonstrate Hunt was deliberately indifferent to plaintiff’s dental
Accordingly, all of the individual defendants are dismissed without prejudice. Plaintiff
may submit an amended complaint curing his pleading deficiencies. In the amended complaint
(which he should designate “First Amended Complaint”), plaintiff must write short, plain
statements explaining: (1) the name of each individual defendant who violated his Eighth
Amendment right; (2) exactly what that defendant did or failed to do; (3) how the action or
inaction of that defendant is connected to the violation of plaintiff’s Eighth Amendment right;
and (4) the injury plaintiff suffered because of that defendant’s conduct. Plaintiff must repeat
this process for each named individual defendant.
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Any amended complaint supersedes an original complaint; accordingly, any cause of
action not raised in the amended complaint will be deemed waived.
Service of United States, Hunt, and Star
As the Federal defendants note, plaintiff has not properly served the United States,
pursuant to Federal Rule of Civil Procedure 4(i)(1) (requiring service on the Attorney General of
the United States at Washington, D.C.), or Hunt, pursuant to Federal Rule of Civil Procedure
4(i)(3) and 4(e). Plaintiff also has not served Star. However, plaintiff is subject to the “good
cause” exception to timely service under Federal Rule of Civil Procedure 4(m). The Court will
advise plaintiff as to service of process after any First Amended Complaint is filed.
For the foregoing reasons, I grant defendants’ Motion to Dismiss (22) and grant plaintiff’s
Motion to Compel (29). Plaintiff has leave to amend his Complaint. If plaintiff fails to amend
the Complaint within 60 days from the date of this order, I will dismiss the action for failure to
state a claim. The Court will advise plaintiff as to service of process after any First Amended
Complaint is filed.
IT IS SO ORDERED.
DATED this 21st
day of December, 2016.
/s/ Garr M. King
Garr M. King
United States District Judge
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