United States District Court, D. Oregon
Dee Stang F.C.I. Sheridan Pro se Plaintiff
J. Williams United States Attorney District of Oregon Jared
D. HagerAttorneys for Defendants.
OPINION AND ORDER
M. KING UNITED STATES DISTRICT JUDGE.
se plaintiff Joe Dee Stang brings a civil rights
complaint against the United States and two dental staff at
F.C.I. Sheridan. Stang filed an Amended Complaint after I
ordered dismissal of his initial Complaint. Pending before me
is a Partial Motion to Dismiss First Amended Complaint for
Failure to State a Claim filed on behalf of defendants Ryan
Hunt and Mr. Kelsch, as well as plaintiff's Motion for
Appointment of Counsel. For the following reasons, I deny the
motion to dismiss, deny the motion for appointment of
counsel, and issue an order directing service of process.
Motion to Dismiss Hunt and Kelsch
United States moves to dismiss the individual officers. I
previously instructed plaintiff that his allegations against
the individual defendants did not demonstrate any of them
were deliberately indifferent to his medical needs. Plaintiff
filed an Amended Complaint. In that filing, plaintiff alleges
the following as to Kelsch: Plaintiff told Kelsch on December
20, 2013, during sick call, that he was experiencing tooth
sensitivity and a broken tooth due to grinding. Am. Compl.
¶ 11. Kelsch diagnosed plaintiff with bruxism, confirmed
a broken filling, and told him that his sensitivity issues
may persist. Id. The temporary filling Kelsch
inserted fell out as a result of grinding. Am. Compl. ¶
14. Kelsch told plaintiff later, on May 19, 2015, that if it
had not been for the associate warden's assistance,
plaintiff would not have received the night guard. Am. Compl.
¶ 26. Kelsch also told plaintiff that Kelsch would not
be allowed to work on plaintiff's teeth again.
alleges the following as to Hunt: Hunt treated plaintiff at
sick call on June 9, 2014. Plaintiff told Hunt he had dental
pain and needed a mouth guard to prevent damage. Am. Compl.
¶ 12. Hunt told Plaintiff he had “‘Exposure
of Dentin/Root Surface' due to sleep related
bruxism.” Id. Hunt identified a fractured
tooth and two others responding to cold in a fashion similar
to a broken tooth. Hunt told Plaintiff he could “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.” Am. Compl. ¶ 15.
alleges generally that in the time between these visits and
his having secured a night guard on June 9, 2015, his teeth
fractured and eroded. Am. Compl. ¶¶ 16, 25.
Plaintiff alleges that his teeth were damaged because Hunt
and Kelsch “did not promptly issue a night guard after
recogni[z]ing Plaintiff's medical need. The inaction of
Defendants caused Plaintiff to suffer permanent and lasting
injury and pain during the wait for a dental night
guard.” Am. Compl. ¶ 25.
the truth of plaintiff's factual allegations, plaintiff
has stated a claim that is plausible on its face. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 663, 678 (2009);
Hunt v. Dental Dep't, 865 F.2d 198, 200
(9th Cir. 1989) (“Hunt alleged that prison
officials were aware that the loss of his dentures was
causing him severe pain and resulting in permanent damage to
his teeth”). Plaintiff's new allegations that he
told Kelsch in December 2013 and Hunt in June 2014 that he
was in pain and needed a mouth guard, together with his
allegations that neither provided him the mouth guard he
needed and that this resulted in pain and injury, are
sufficient to state a claim for deliberate indifference.
McGuckin v. Smith, 974 F.2d 1050, 1060
(9th Cir. 1989) (“A defendant must
purposefully ignore or fail to respond to a prisoner's
pain or possible medical need in order for deliberate
indifference to be established.”); see also
Baptiste v. Dunn, 448 F. App'x 680, 681-82
(9th Cir. Aug. 18, 2011) (unpublished) (remanding
to district court to allow plaintiff to allege harm
associated with delay in replacing his dentures).
Order Denying Appointment of Counsel
moves for the appointment of pro bono counsel on the
basis that he does not have the skill, training or experience
to represent himself. Generally, a person has no
constitutional right to counsel in a civil action. Palmer
v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009);
U.S. v. 30.64 Acres of Land, 795 F.2d 796, 801
(9th Cir. 1986). However, pursuant to 28 U.S.C.
§ 1915(e)(1), this court may request volunteer counsel
for indigent plaintiffs upon a showing of exceptional
circumstances. Palmer, 560 F.3d at 970; Wood v.
Housewright, 900 F.2d 1332, 1335 (9th Cir.
1990). In order to determine whether exceptional
circumstances exist, this court evaluates the plaintiff's
likelihood of success on the merits, as well as his ability
to articulate his claims pro se in light of the
complexity of the legal issues involved. Palmer, 560
F.3d at 970; Agyeman v. Corr. Corp. of Am., 390 F.3d
1101, 1103 (9th Cir. 2004); Wood, 900
F.2d at 1335.
stage of the proceeding, plaintiff has demonstrated a
sufficient ability to articulate his claims in light of the
complexity of the case. The difficulties of which plaintiff
complains are experienced by all pro se plaintiffs.
Consequently, I conclude there are no exceptional
circumstances warranting the appointment of counsel under
§ 1915(e). As a result, I deny Plaintiff's Motion
for Appointment of Counsel.
Order to Issue Process
Clerk of the Court is directed to forward to Plaintiff with
this Order two Summonses and U.S. Marshal Instruction forms.
Plaintiff shall complete the Summonses and instruction form
for the two remaining unserved defendants-the United States
at the Attorney General's Office in Washington D.C. and
Ryan Hunt-and return them to the Clerk of the Court. An
original plus one copy of a Summons must be returned for each
named Defendant. Plaintiff is ADVISED that he must check the
box on Form USM-285 which reads “Check for service on
U.S.A.” Because this suit is brought against Ryan Hunt
in his individual capacity, plaintiff must insert the
following in the ...