United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se and in forma pauperis, has
filed this civil rights action pursuant to 42 U.S.C. §
1983. This matter is before the court on defendant Nurse
Wang's motion to dismiss the second amended complaint for
failure to state a claim. Alternatively, she argues she is
entitled to qualified immunity. Plaintiff opposes the motion.
For the reasons set forth below, the undersigned will
recommend that defendant's motion be denied.
August 17, 2013, while housed at Folsom State Prison
(“FSP”), plaintiff told Nurse Wang that his jaw
is swollen, he has a toothache, and he is in terrible pain.
Nurse Wang responded that there is nothing she can do and
directed plaintiff to file a medical request. Plaintiff then
suffered four days of pain, headaches and little sleep before
he was treated for an abscessed tooth. Plaintiff claims
defendant should have recognized his complaints as a dental
emergency and directed him to emergency care instead of
simply submitting a medical request form. He seeks damages
initiated this case on August 1, 2014. Therein, plaintiff
alleged, in relevant part, that he informed Nurse Wang about
his need for immediate dental care, but that Wang failed to
offer any treatment or expedite plaintiff's appointment
with a dentist or other medical professional. He alleged that
Nurse Wang intentionally disregarded plaintiff's serious
symptoms and directed him to complete a Medical Request Form
and await the response in due course.
November 6, 2014, the complaint was screened and the
allegations were found sufficient to state an Eighth
Amendment claim against defendant Wang. (ECF No. 8.) No other
claims, however, were found cognizable. Plaintiff was thus
provided the option of proceeding on the complaint as
screened or filing a first amended complaint. Plaintiff chose
the former option, and service was ordered on Nurse Wang.
(ECF No. 18.)
27, 2015, defendant filed a motion to dismiss. (ECF No. 22.)
She argued that she was responsive to plaintiff's request
for treatment, that her licensure precluded her from
prescribing pain medication or providing dental treatment,
and that plaintiff was not harmed by a three-day delay before
seeing a dentist. Alternatively, she argued that she was
entitled to qualified immunity.
February 26, 2016, defendant Nurse Wang's motion to
dismiss was granted after the then-assigned magistrate judge
found that the allegations, as plead, did not show a medical
emergency or deliberate indifference. (ECF No. 32.)
Plaintiff's complaint was thus dismissed with leave to
19, 2016, plaintiff filed a first amended complaint that was
screened and found to state an Eighth Amendment claim against
Nurse Wang but not against a supervisory defendant named
therein. (ECF No. 39.) Plaintiff was then given another
option to either proceed on the amended pleading as screened
or file a second amended complaint.
April 19, 2017, plaintiff filed a second amended complaint.
(ECF No. 40.) On review, the undersigned found that plaintiff
simply re-asserted the claim against Nurse Wang that was
previously found to be viable, and he dismissed his claim
against the supervisory defendant. (ECF No. 41.) Nurse Wang
was thus ordered to file a responsive pleading.
June 20, 2017, motion to dismiss followed. (ECF No. 42.)
Plaintiff opposes the motion. (ECF No. 43.)