King v. Wang et al

Filing 32

ORDER signed by Magistrate Judge Carolyn K. Delaney on 02/25/16 granting 22 Motion to Dismiss. The complaint 1 is dismissed with leave to amend. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID KING,

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No. 2:14-cv-1817 KJM CKD P (TEMP)
Plaintiff,

v.

ORDER

WANG, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action pursuant to 42 U.S.C. § 1983. This action proceeds on the original pleading (ECF

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No. 1), which was found to state an Eighth Amendment medical indifference claim against

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defendant Wang (ECF No. 8).

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Before the court is defendant’s July 27, 2015 motion to dismiss the complaint under Rule

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12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. (ECF No. 22.)

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Plaintiff opposes the motion.

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I. Legal Standards for Motion to Dismiss

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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

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at 570). In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the party opposing the motion, and resolve all

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doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S.

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869 (1969). The court may consider facts established by exhibits attached to the complaint.

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Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider

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facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385,

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1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers

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filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986).

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II. Plaintiff’s Allegations

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Plaintiff alleges that on Saturday, August 17, 2013, he informed Licensed Vocational

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Nurse (“LVN”) Wang that he had a toothache and was in terrible pain. LVN Wang told plaintiff

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that there was nothing that she could do and directed him to submit a Medical Request Form.

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Plaintiff submitted the form that day and was seen by a dentist on Tuesday, August 20, 2013.

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Plaintiff seeks damages for the pain and suffering that he endured until his dental appointment.

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III. Discussion

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Defendant moves to dismiss the complaint on several grounds: (1) she was responsive to

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plaintiff’s request for treatment, (2) her licensure precluded her from prescribing pain medication

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or providing dental treatment for a toothache, (3) plaintiff was not harmed by the delay, and (4)

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defendant is entitled to qualified immunity.

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Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the

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prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth

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Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and

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the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir. 1997) (en banc).
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A serious medical need exists if the failure to treat the condition could result in further

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significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists, and

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he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a

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defendant is liable if he knows that plaintiff faces “a substantial risk of serious harm and

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disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. “It is enough

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that the official acted or failed to act despite his knowledge of a substantial risk of harm.” Id. at

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842.

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Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

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at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a

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plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th

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Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

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1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In

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this regard, “[a] prisoner need not show his harm was substantial; however, such would provide

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additional support for the inmate’s claim that the defendant was deliberately indifferent to his

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needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at

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1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that

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inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.

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1989) (per curiam). A failure to competently treat a serious medical condition, even if some

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treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

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Defendant first argues that plaintiff’s allegations fail to state a claim because she did not

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act with deliberate indifference. The court agrees that plaintiff’s allegations fall far short of the

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showing necessary for a claim of deliberate indifference. Not only does plaintiff fail to assert any

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facts to demonstrate the requisite state of mind, but he also fails to show that the minor 3-day

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delay before his dental appointment resulted in further injury or the “unnecessary and wanton

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infliction of pain.” By plaintiff’s own admission, LVN Wang did not outright refuse plaintiff’s

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request for medical assistance. While plaintiff may have believed that LVN Wang should have
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done more, there is no allegation that plaintiff’s condition constituted a medical emergency. Even

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assuming that LVN Wang was somehow negligent or even grossly negligent, this, without more,

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does not establish a constitutional violation. Defendant’s motion will therefore be granted.1 Based

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on the exhibit attached to his opposition, it may be unlikely that plaintiff can adduce sufficient

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evidence to establish a viable deliberate indifference claim. Nonetheless, the court will grant him

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leave to amend.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to dismiss (ECF No. 22) is granted;

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2. The Complaint (ECF No. 1) is dismissed with leave to amend;

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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Dated: February 25, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mb/king1817.mtd

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In light of this finding, the court declines to reach defendant’s remaining grounds for dismissal.

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