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King v. Wang

United States District Court, E.D. California

July 26, 2017

DAVID KING, Plaintiff,
v.
WANG, Defendant.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. Background

         A. Factual Allegations

         On 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

         B. Procedural Background

         Plaintiff 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.

         On 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.)

         On July 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.

         On 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 amend.

         On May 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.

         On 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.

         Defendant's June 20, 2017, motion to dismiss followed. (ECF No. 42.) Plaintiff opposes the motion. (ECF No. 43.)

         II. ...


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