DEBORAH BARNES, 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.
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
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.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions to dismiss for "failure to state a claim upon which relief can be granted." In considering a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true the allegations of the complaint in question,
In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."
Generally, pro se pleadings are held to a less stringent standard than those drafted by lawyers.
Defendant moves to dismiss the second amended complaint pursuant to the law of the case doctrine. She argues that since plaintiff's allegations were previously found insufficient to state a claim, they should continue to be found insufficient because they are "nearly identical to those in the original." Def.'s Mot. Dism. ("MTD") at 1. She also argues that plaintiff fails to state a claim. In the alternative, she contends that she is entitled to qualified immunity.
Where a prisoner's Eighth Amendment claims arise in the context of medical care, the prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."
A serious medical need exists if the failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain.
Delays in providing medical care may manifest deliberate indifference.
Under the "law of the case" doctrine, "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case."
A court may have discretion to depart from the law of the case where: 1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result. Failure to apply the doctrine of the law of the case absent one of the requisite conditions constitutes an abuse of discretion.
On review, the undersigned finds the allegations in the complaint and second amended complaint are sufficiently different such that the law of the case doctrine does not warrant dismissal of the operative pleading because "other changed circumstances exist."
Plaintiff's allegations in the original complaint, in their entirety, are reproduced here:
Compl. at 3 (ECF No. 1 at 4.) On grant of defendant's first motion to dismiss, the then-magistrate judge held that these allegations are insufficient to show a serious medical condition and deliberate indifference.
In contrast, the second amended complaint includes a number of additional allegations that, liberally construed, are sufficient to withstand the instant motion. He alleges, for example, that he was suffering from an abscessed tooth; that an abscessed tooth can be life-threatening; that Nurse Wang, through her medical training, knew or should have known that plaintiff's symptoms constituted a dental emergency; that Nurse Wang, who claimed that "there is nothing I can do," was in fact authorized to direct plaintiff to immediate emergency care; that Nurse Wang disregarded plaintiff's symptoms by telling him instead to simply file a medical request form; and that as a result of Nurse Wang's deliberate indifference, plaintiff suffered pain for three days before finally being treated for the abscessed tooth by a dentist. These allegations are not "nearly identical" to those asserted in the original complaint, and they withstand the weaknesses identified in that complaint.
Defendant next argues that she was not deliberately indifferent when she directed plaintiff to fill out a medical request form for a toothache and that she did not have the license to prescribe pain medication or treat a toothache. But plaintiff alleges more than a mere toothache. He alleges that he was suffering from an abscessed tooth and that he described a swollen jaw and terrible pain. He also alleges that defendant's directive to simply fill out a medical request form was constitutionally indifferent to his medical needs since she should have known that his complaints were serious, and she had the authority to refer plaintiff to immediate emergency care.
Defendant also argues that plaintiff was not "substantially harmed" by the three-day delay between his medical request and treatment by a dentist. This, however, is not the test for an Eighth Amendment medical indifference claim. If defendant's argument was accepted, a prison official fully aware that a prisoner was suffering from the most excruciating pain conceivable could leave him to suffer indefinitely without violating the Eighth Amendment because the prisoner's pain could not get any worse. This is not the law.
In the alternative, defendant contends she is entitled to qualified immunity. The court finds that it cannot conclude that qualified immunity is appropriate at this stage in the proceedings. "Qualified immunity is an affirmative defense that must be raised by a defendant."
In this case, the pleading alleges that defendant was deliberately indifferent to plaintiff's dental emergency when she directed him to simply file a medical request form instead of directing him to emergency care as she was authorized to do. At the time of Nurse Wang's alleged conduct, the law on deliberate indifference to medical needs was clearly established. The Ninth Circuit established long ago that "dental care is one of the most important medical needs of inmates" and that prison officials' acts which "deny, delay, or intentionally interfere with medical treatment"
For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendant's motion to dismiss be denied, and defendant be directed to file an answer within ten (10) days from the date that these findings and recommendations are adopted.
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may result in waiver of the right to appeal the district court's order.
