KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding through counsel. Defendants move to dismiss this action because they contend it appears from the face of the second amended complaint and its exhibits that plaintiff failed to exhaust his administrative remedies prior to filing the instant action. Defendants also move to dismiss the action based on the following three grounds: (1) defendant Fox did not personally violate plaintiff's constitutional rights; (2) defendant Fox is entitled to qualified immunity; and (3) plaintiff failed to state a deliberate indifference claim against defendants Kim, Wong, and Ogbodo. As set forth below, the undersigned recommends that defendants' motion to dismiss be granted in part and denied in part.
Plaintiff is an African American inmate housed at Deuel Vocational Institute ("DVI") in August of 2011. Plaintiff alleges he began suffering from flu-like symptoms in early January of 2012, including a fever and drastic weight loss: reducing from 207 to 130 pounds in the span of about a week. (ECF No. 37 at 5.) Plaintiff also experienced severe back pains, which prevented him from laying down, as well as numbness in his legs, impaired mobility, and severe headaches. Plaintiff was allegedly not involved in any physical altercation or accident, slip or fall, that would have explained plaintiff's symptoms. Plaintiff began requesting medical treatment on or about January 4, 2012. In response to plaintiff's complaints, Dr. Wong prescribed acetaminophen with codeine phosphate (Tylenol), guaifenesin-dextromethorphan (Robitussin), and sunatriptan (Migraine medication). On or about January 17, 2012, plaintiff went "man down," and RN Ogbodo gave plaintiff a hydrocodone shot for his excruciating pain. The pain returned after 11 hours, and RN Ogbodo gave plaintiff two more hydrocodone shots. Plaintiff claims that the pain and previous symptoms returned almost immediately. Plaintiff alleges that his relationship with Dr. Wong was "rocky and harried," and that Dr. Wong became defensive when plaintiff demanded more rigorous testing, plaintiff arguing that his symptoms were shocking based on his prior great physical shape and his experience and training as a physical therapist. Dr. Wong explained that plaintiff's physical therapy experience could not equate to Dr. Wong's qualification as a medical doctor, and that the prescribed medication and treatment should suffice. (ECF No. 37 at 6.)
Dr. Wong allegedly did not order an x-ray of plaintiff's lumbar spine until February 24, 2012. Dr. Wong opined that the x-ray results showed plaintiff's spine was in a healthy condition, despite plaintiff's objections and pleadings. Plaintiff attempted to obtain further medical tests through the appeals process, and was provided an x-ray of his hip.
Plaintiff went "man down" again on May 1, 2012. Plaintiff states that a correctional officer and two other DVI personnel (likely staff nurses from the medical ward) approached plaintiff, but plaintiff claims the nurses refused to transport plaintiff to medical, refused to treat plaintiff in his cell because he was seen by a physician earlier that day, and claimed plaintiff was faking his injury so that he could be given more prescription drugs. (ECF No. 37 at 6.)
On May 16, 2012, plaintiff was transferred to Salinas Valley State Prison ("SVSP"). On May 24, 2012, plaintiff again went "man down," and allegedly experienced five days of lower back extremity paralysis, including an inability to walk, loss of sensation from the waist down, and urinary and fecal incontinence. On May 30, 2012, plaintiff was hospitalized and provided an MRI of his lumbar spine, which showed a large epidural mass at the L5-S1 level with significant bone destruction, and significant bony destruction confirmed both on MRI and CT scanning of S1. The spine deterioration was diagnosed as advanced stages of coccidioidomycosis. On May 31, 2012, plaintiff underwent surgery at Stanford University Medical Center where his spine was treated and supported with pedicle screws. On June 28, 2012, plaintiff underwent a second surgery, involving decompression and debridement of the operated area. Medical staff at Stanford opined that plaintiff would be unable to lift more than 25 pounds, requiring the assistance of a cane for the rest of his life, and is hyper-vulnerable to paralysis if his body experiences a traumatic blow. (ECF No. 37 at 7.)
Plaintiff includes three causes of action: First, plaintiff alleges that defendants Fox and Does 1-5 failed to implement policies and procedures to protect plaintiff from the debilitating effects of coccidioidomycosis, also known as "Valley Fever," knowing that inmates were susceptible to the disease, and in deliberate indifference to plaintiff's health. Second, plaintiff alleges that defendant Dr. Wong, as plaintiff's primary care physician, was aware that plaintiff lost close to 80 pounds in one week, was experiencing excruciating back pain, had numbness in his legs, had a fever, and had experienced no blunt-force trauma to explain such symptoms and was historically an extremely healthy individual. Plaintiff contends that defendant Dr. Wong was deliberately indifferent to plaintiff's serious medical needs, and failed to order blood tests, an MRI, or refer plaintiff to a specialist, to determine the etiology of plaintiff's drastic weight loss, and continuous complaints of leg numbness and excruciating back pain. Third, plaintiff alleges that defendant Ogbodo failed to assist plaintiff when he went "man down" on May 1, 2012, despite knowing plaintiff had been suffering from excruciating back pain, immobility, fever, drastic weight loss, and numbness in his lower extremities.
Plaintiff provides a patient education form, dated August 2013, that identifies the following symptoms of Valley Fever: fever, cough, tiredness, headaches, rash, joint/muscle aches, night sweats, weight loss/lack of appetite, pneumonia. (ECF No. 37 at 13.)
Plaintiff does not disclose his age, but the CDCR Inmate Locator website lists plaintiff's current age as 36. A previously-provided medical record reflects that after he was transferred to SVSP, plaintiff's age was recorded as 32 on July 4, 2012. (ECF No. 29 at 9.)
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question,
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory.
Proper exhaustion of available remedies is mandatory.
A motion asserting an affirmative defense such as failure to exhaust may be brought under Rule 12(b)(6) or Rule 56 depending on whether the factual predicate for the motion is based on the text of the pleading or instead depends upon evidence submitted with the motion.
Failure to exhaust is "an affirmative defense the defendant must plead and prove."
A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him.
Moreover, in
Recently, the Ninth Circuit clarified that "a prisoner exhausts such administrative remedies as are available under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process."
The California Department of Corrections and Rehabilitation ("CDCR") provides inmates the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Following amendments that took effect January 28, 2011, California prisoners are required to proceed through three levels of appeal to exhaust the administrative appeal process: (1) formal written appeal on a CDC 602 inmate appeal form, (2) second level appeal to the institution head or designee, and (3) third level appeal to the Director of the CDCR.
To initiate an appeal, the inmate must submit a CDCR Form 602 describing the issue to be appealed and the relief requested to the appeals coordinator's office at the institution.
With the second amended complaint, plaintiff provided only his first level appeal and the first level response to appeal DVI HC 12040415. (ECF No. 37 at 55-58.) Plaintiff stated that he went man down, and medical refused to pick him up. Plaintiff claimed to have a pinched nerve in his lower back, and that his right leg went out on him after using the bathroom. (ECF No. 37 at 55.) Plaintiff claimed that the "lady in charge" "thinks it's about pills," but plaintiff could "care less [sic] about meds, I want my back fixed." (ECF No. 37 at 55.)
Plaintiff was interviewed by his primary care physician, Dr. Wong, and his first level appeal was reviewed by Chief Medical Officer Kim, on behalf of Dr. Michael Fox. (ECF No. 37 at 55.) Dr. Kim noted that before plaintiff was transferred to SVSP on May 16, 2012, his Unit Health Record ("UHR"), and all relevant departmental policies and procedures were reviewed. (ECF No. 37 at 57.) In addition, plaintiff was evaluated by Dr. Wong on May 15, 2012.
Plaintiff's request to receive proper medical care/treatment for his back, and not to simply receive medication, was "partially granted." (ECF No. 37 at 58.) It was determined that plaintiff was seen on May 1, 2012, by A. Ogbodo, R.N., as plaintiff went "man down," stating pain medications were not working, he could not move, and wanted to be seen by a doctor. RN Ogbodo documented her observation that plaintiff was "alert, oriented, in no acute distress." (ECF No. 37 at 58.) Ogbodo informed plaintiff that he was last seen on April 25, 2012, by Dr. Wong, who prescribed Motrin for pain, and ordered a follow-up evaluation. On May 15, 2012, plaintiff was seen by Dr. Wong, who observed plaintiff walking around and moving with no difficulty. (ECF No. 37 at 58.) Dr. Wong also documented that the x-rays of plaintiff's hip and lumbar spine were within normal limits. Dr. Wong instructed plaintiff to continue taking the prescribed pain medication, perform self-directed physical therapy, and follow up with medical at SVSP in four to six weeks.
Based on the above, Dr. Kim found "no evidence" that plaintiff's "medical issues were not appropriately addressed" or "that proper departmental policy or procedures were not followed." (ECF No. 37 at 58.) Because plaintiff had been transferred to SVSP, Dr. Kim encouraged plaintiff to pursue any further medical concerns or issues at SVSP. (
Defendants first contend that based on plaintiff's failure to provide a copy of a third level decision, "it can be properly inferred that he did not appeal his health-care appeal to the third level of review as required for proper exhaustion." (ECF No. 38-1 at 14.) Defendants are mistaken. As set forth above, failure to exhaust under the PLRA is "an affirmative defense" that defendants "must plead and prove."
Second, defendants contend that the appeal demonstrates that plaintiff did not properly appeal his claims because appeal DVI HC 12040415 does not allege any issues with defendants Fox, Kim, Wong, or any other medical doctor at DVI, and did not raise a conditions of confinement claim related to being exposed to and contracting Valley Fever. However, as noted above, the court cannot presume or infer that plaintiff filed no other appeal concerning his claims. In addition, at the time plaintiff filed appeal DVI HC 12040415, it appears no one was aware, including plaintiff, that he had Valley Fever. However, plaintiff did articulate that he was not drug seeking but wanted his back fixed. In addition, the review of plaintiff's UHR would reveal plaintiff's complaints of ongoing excruciating back pain, headaches, and leg numbness, as well as an alleged drastic weight loss: from 207 to 130 pounds in about a one week period.
Moreover, the court cannot reach the issue of whether or not plaintiff may be excused from exhausting administrative remedies because his alleged failure to exhaust is not apparent from the face of the operative pleading and its exhibits. In addition, whether or not plaintiff may be excused from exhausting his administrative remedies through the third level of review is more appropriately addressed on summary judgment inasmuch as the parties would likely be required to file additional documents, including declarations by the parties. In addition, it is unclear whether plaintiff may be excused from exhaustion based on his medical condition, including his alleged paralysis after transfer, and subsequent hospitalizations at Stanford.
Because the undersigned cannot find that plaintiff failed to exhaust his administrative remedies by reviewing the face of the second amended complaint or the appended exhibits, defendants' motion to dismiss is denied without prejudice to renewal upon a properly supported motion for summary judgment.
Federal law establishes that deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment.
A medical need is defined as "serious" if the failure to treat the prisoner's condition could result in further significant injury or the "`[u]nnecessary and wanton infliction of pain.'"
Delays in providing medical care may manifest deliberate indifference.
Finally, a claim of medical malpractice or negligence is insufficient to make out a violation of the Eighth Amendment.
Defendants contend that plaintiff's allegations against defendant Fox do not demonstrate that defendant Fox personally violated plaintiff's constitutional rights in connection with his conditions of confinement claim, and argue that defendant Fox is entitled to qualified immunity.
Plaintiff alleges that defendants Fox and Does 1-5 failed to implement policies and procedures to protect plaintiff from the debilitating effects of Valley Fever, knowing the inmates were susceptible to the disease. In support of such claims, plaintiff provides a patient education form that identifies eight prisons where the fungus is more common, none of which include DVI. (ECF No. 37 at 13.) Plaintiff provides the November 20, 2007 memorandum ("memo") from Director Hubbard and Dr. Winslow, Statewide Medical Director, identifying eight institutions located in a high risk (hyperendemic) area for Valley Fever: Avenal State Prison, California Correctional Institution, California State Prison-Corcoran, California Substance Abuse Treatment Facility and State Prison at Corcoran, Kern Valley State Prison, North Kern Valley State Prison, Pleasant Valley State Prison, and Wasco State Prison. (ECF No. 37 at 48.) The memo informs wardens, health care managers/Chief Medical Officers, Directors of Nursing, and other correctional staff that certain susceptible inmates cannot be housed at institutions within the identified hyperendemic areas, if the inmate has any of the following conditions: (a) identified HIV infected inmate-patients; (b) history of lymphoma; (c) status post solid organ transplant; (d) chronic immunosuppressive therapy (e.g. severe rheumatoid arthritis); (e) moderate to severe Chronic Obstructive Pulmonary Disease (COPD) requiring ongoing intermittent or continuous oxygen therapy; and (f) inmate-patients with cancer undergoing chemotherapy. (ECF No. 37 at 49.)
The Civil Rights Act under which this action was filed provides as follows:
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff.
Although supervisory government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior,
Here, the undersigned is persuaded that plaintiff has not alleged facts demonstrating that defendant Fox was the moving force in the alleged violation of plaintiff's Eighth Amendment rights when plaintiff was housed at DVI. Although plaintiff alleges that Dr. Fox was knowledgeable that inmates at every institution were susceptible to Valley Fever, the appended exhibits contradict such a generalized statement. Even if the court infers that Dr. Fox was a chief medical officer who received the November 20, 2007 memo, the memo confirms that DVI was not listed as one of the institutions located in the highest risk (hyperendemic) areas at risk of Valley Fever. (ECF No. 37 at 48.) In addition, African American inmates were not included as a group of inmates to be excluded from the state prisons located in hyperendemic areas. (ECF No. 37 at 49-53.) Rather, the memo defined susceptible inmates as those suffering other diseases. (ECF No. 37 at 49.) In addition, by 2013, such information had not changed. The August 2013 patient education form still does not list DVI as located in a hyperendemic area, or include African Americans as an at-risk group. (ECF No. 37 at 13.) Therefore, even assuming Dr. Fox received the November 20, 2007 memo, the memo would not put Dr. Fox on notice that he should implement Valley Fever policies or procedures at DVI when plaintiff was transferred to DVI in 2011. Similarly, Does 1-5 would not have been put on such notice. Finally, such defendants could not be put on notice by findings in the "Analysis of 2011 Inmate Death Reviews in the California Prison Healthcare System," because it was dated May 12, 2012, long after plaintiff was placed at DVI in 2011, and shortly before he was transferred to SVSP on May 16, 2012. (ECF No. 37 at 16.)
In light of the evidence appended to plaintiff's pleading, it does not appear that plaintiff can amend to state a cognizable claim based on an alleged failure to implement policies or procedures based on an alleged risk of Valley Fever for African American inmates, including plaintiff, housed at DVI in 2011 or 2012. Therefore, defendant Fox and Does 1-5 should be dismissed from this action, and plaintiff should not be granted leave to amend as to such claims.
"The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"
In determining whether an officer is entitled to qualified immunity, the court must decide (1) whether facts alleged or shown by plaintiff make out a violation of constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct.
The measuring rod for determining whether an official's conduct violates a plaintiff's constitutional right was set forth by the Supreme Court in
Defendants argue that plaintiff had no clearly established right not to be housed in the endemic region or otherwise be protected from the environmental risk of Valley Fever in August of 2011. (ECF No. 42 at 7.) Because the complaint describes an emerging public health issue that public officials were seeking to understand and address, even assuming Dr. Fox had personal involvement in plaintiff's housing at DVI, defendants argue that a reasonable person in Dr. Fox's position would not have fair notice that relying on the Valley Fever exclusion criteria adopted by the CDCR in consultation with the Receiver's office was clearly unlawful. Plaintiff counters that Dr. Fox is not entitled to qualified immunity because he violated plaintiff's clearly established right to receive constitutionally adequate medical care. (ECF No. 41 at 16.)
"[I]t would be impossible to conclude that a disease [like Valley Fever] that, in its severe form, could lead to death does not present a risk of serious harm."
Here, plaintiff points to no authority finding that plaintiff had a clearly established right in August of 2011 not to be housed in DVI, located in an area with a prevalence of Valley Fever spores. Moreover, the November 20, 2007 memo authored by Suzan L. Hubbard, Director of the CDCR Division of Adult Institutions, and Dwight Winslow, M.D., Statewide Medical Director,
In
This court is persuaded by the above authorities. Because it was not clearly established in 2014 that housing African American prisoners at hyperendemic institutions violated their Eighth Amendment rights, defendants Fox and Does 1-5 are entitled to qualified immunity based on allegations that in 2011, plaintiff, an African American inmate, was housed at DVI, which was not identified as an institution located within the hyperendemic area, even by 2013. Thus, defendant Fox and Does 1-5 are entitled to qualified immunity based on their alleged failure to set up policies and procedures to warn him about, screen for, or protect plaintiff from Valley Fever upon his placement and housing at DVI in 2011 to 2012. Defendants' motion to dismiss such claims on qualified immunity grounds should be granted.
As noted by defendants, plaintiff's second amended complaint includes no charging allegations as to defendant Kim. Thus, defendant Kim is entitled to dismissal.
Plaintiff identifies defendant Ogbodo as a Registered Nurse, "responsible for evaluating inmates and recommending them to the primary caregiver." (ECF No. 37 at 3.) Plaintiff includes no factual allegations supporting his claim that Ogbodo "failed to assist" plaintiff when he went "man down" on May 1, 2012. (ECF No. 37 at 10.) Rather, he claims that a correctional officer and two other personnel responded to plaintiff's cell on May 1, 2012. Plaintiff parenthetically identifies the "personnel" as "likely staff-nurses from the medical ward," and alleges "the nurses refused to transport" plaintiff to medical. (ECF No. 37 at 6.) But plaintiff does not identify Ogbodo as one of these "likely staff nurses," and he does not allege that on May 1, 2012, Ogbodo responded to plaintiff's cell, refused to transport plaintiff to medical, or instructed the staff nurses not to transport plaintiff to medical. (ECF No. 37 at 6-7.) The court and defendants are not required to review the appended administrative appeal to determine plaintiff's charging allegations as to defendant Ogbodo. Plaintiff fails to allege sufficient facts demonstrating that Ogbodo was aware of a substantial risk of harm to plaintiff yet failed to take steps to abate the harm based on her alleged "failure to assist" plaintiff on May 1, 2012. Absent clarifying factual allegations not present here, the undersigned cannot find that plaintiff states a cognizable Eighth Amendment claim as to defendant Ogbodo.
Moreover, it is unclear whether plaintiff can amend to state a cognizable Eighth Amendment claim against RN Ogbodo. Plaintiff does not identify RN Ogbodo as a "Director of Nursing," so the undersigned is unable to infer that Ogbodo received the November 20, 2007 memo. In addition, as explained above, the exhibits demonstrate that prison personnel were not warned of a threat of Valley Fever at DVI, and African American inmates were not identified as particularly susceptible in the 2007 memo. Moreover, plaintiff does not allege that defendant Ogbodo was the "lady in charge" who allegedly believed plaintiff was drug-seeking, despite the reference to Ogbodo in the appeal response. In addition, plaintiff's allegation that Ogbodo "failed to assist" plaintiff is contradicted by the appeal response in which it was determined that on May 1, 2012, plaintiff was seen by Ogbodo, who noted that plaintiff was "observed to be alert, oriented, in no acute distress," and "a follow-up evaluation was ordered." (ECF No. 37 at 58.)
In an effort to determine whether plaintiff may be able to amend his pleading to state a cognizable claim against defendant Ogbodo, the undersigned reviewed plaintiff's previous factual allegations against her. In his original complaint, plaintiff stated that on May 1, 2012, he submitted a second appeal alleging improper medical care/treatment for his serious medical condition "after being seen by Ogbodo who determined that she observed plaintiff to be alert, oriented, in no acute distress[,] and informed him that he would be seen by defendant Wong." (ECF No. 1 at 7.) In his pro se amended complaint, plaintiff included no factual allegations concerning Ogbodo on May 1, 2012. (ECF No. 15.) However, he alleged that although Ogbodo gave him a hydrocodone shot on January 17, 2012, Ogbodo alleged plaintiff was "faking his illness just to get some drugs." (ECF No. 15 at 4.) In his May 1, 2012 administrative appeal, plaintiff claimed that the "lady in charge in main medical thinks it's about pills." (ECF No. 37 at 55.) In the operative second amended complaint, plaintiff now alleges that Ogbodo "failed to assist" plaintiff on May 1, 2012, but does not allege that Ogbodo responded or treated plaintiff on May 1, 2012. Rather, he now claims that the unidentified nurses refused to transport or treat plaintiff on May 1, 2012, because plaintiff "was seen by a physician earlier that day and that he was faking his injury so that he could be given more prescribed drugs." (ECF No. 37 at 6.) Thus, plaintiff's prior factual allegations do not assist the court in determining whether plaintiff can state a cognizable claim against defendant Ogbodo.
Although plaintiff filed his first two pleadings in propria persona, plaintiff is now represented by counsel, who prepared the operative second amended complaint. Because it is unclear whether plaintiff can amend to state a cognizable Eighth Amendment claim against defendant Ogbodo, the undersigned will not grant plaintiff leave to amend at this time. However, plaintiff's claims are dismissed without prejudice, should plaintiff discover facts that would support filing a motion to amend under Rule 15 of the Federal Rules of Civil Procedure.
Defendants argue that plaintiff failed to demonstrate that Dr. Wong knew, or should have known, that plaintiff faced a substantial risk of serious harm, and then chose to disregard such risk. Rather, defendants contend plaintiff seeks to impose constitutional liability based solely on a subsequent discovery of an abscess on his spinal cord and a Valley Fever diagnosis several months after his appointment with Dr. Wong at DVI. Defendants argue that the extent or severity of plaintiff's injury does not determine the subjective component of the deliberate indifference standard. Defendants further contend that at worst, plaintiff's allegations might show Dr. Wong misdiagnosed or erred in evaluating plaintiff's illness, or that the illness was undetectable when Dr. Wong treated plaintiff, constituting negligence or medical malpractice, not rising to the level of an Eighth Amendment violation.
However, plaintiff has alleged facts suggesting that the medical treatment provided was medically unacceptable under the circumstances, and that Dr. Wong, plaintiff's primary care physician, delayed plaintiff adequate medical care from January through May of 2012, allegedly subjecting plaintiff to substantial and permanent harm. Dr. Wong last saw plaintiff on May 15, 2012, the day before plaintiff's transfer to SVSP, in connection with plaintiff's administrative appeal seeking further medical treatment. (ECF No. 37 at 58.) Based upon the claims that Dr. Wong knew plaintiff suffered from excruciating back pain, leg numbness, fever, headaches, and drastic weight loss (from 207 to 130 pounds in about a one week period), plaintiff states a cognizable claim alleging that Dr. Wong should have earlier pursued other diagnostic tests given plaintiff's prior good health, with no history of trauma that would explain his excruciating back pain or drastic weight loss. Indeed, plaintiff provides an exhibit that reflects that "progressive weight loss" is "one of the most frequently mishandled `red flags'" in type 1 lapses of care: "failure to recognize, identify or adequately evaluate important symptoms or signs." (ECF No. 37 at 26, 45.) Moreover, it can be argued that x-rays reflecting results "within normal limits," in the face of such debilitating symptoms in an otherwise healthy man in his early thirties, should alert a doctor to the need for more diagnostic tests to determine the etiology of plaintiff's excruciating back pain, drastic weight loss, and other recurring symptoms. Similarly, the provision of three separate shots of hydrocodone in the span of two days, demonstrates that plaintiff was suffering excruciating back pain as early as January 17, 2012.
While defendant Dr. Wong may be able to prove at summary judgment that his actions were not deliberately indifferent, but were merely based on the latency of the illness, a misdiagnosis of plaintiff's symptoms, negligence, or medical malpractice, plaintiff's allegations, taken as true, are sufficient to state a cognizable deliberate indifference claim at this juncture.
Accordingly, IT IS HEREBY RECOMMENDED that defendants' motion to dismiss be granted in part and denied in part, as follows:
1. Defendants' motion to dismiss plaintiff's claims as unexhausted be denied without prejudice;
2. Plaintiff's claims that defendants Fox and Does 1-5 failed to implement policies and procedures to warn him about, screen for, or protect plaintiff from Valley Fever upon his placement and housing at DVI in 2011 to 2012 be dismissed, and, in the alternative, defendants Fox and Does 1-5 be granted qualified immunity as to such claims;
3. Defendant Kim be dismissed from this action based on plaintiff's failure to include any charging allegations against defendant Kim;
4. Plaintiff's claims against defendant Ogbodo should be dismissed without prejudice; and
5. Defendant Dr. Wong's motion to dismiss be denied, and Dr. Wong be required to file an answer within fourteen days of any district court order adopting these findings and recommendations.
These findings and recommendations are 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. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to oappeal the District Court's order.