Sanderson v. Schmidt et al

Filing 41

ORDER: re Motion for Summary Judgment 34 . Signed by Judge Sharon L. Gleason on 07/17/2015. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JAMES SANDERSON,
Plaintiff,
vs.
DR. MICHALE BOOTHE,

Case No. 3:14-cv-00053-SLG

Defendant.

ORDER RE MOTION FOR SUMMARY JUDGMENT
I. MOTION PRESENTED
On March 20, 2014, James Sanderson, representing himself, filed a
Prisoner’s Complaint under the Civil Rights Act, 42 U.S.C. § 1983, which is
proceeding solely against Dr. Michale Boothe. 1 On March 9, 2015, Dr. Boothe
filed a Motion for Summary Judgment. 2 Mr. Sanderson has responded and Dr.
Boothe has replied. 3 Oral argument was not requested and was not necessary to
the Court’s determination of this motion.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material

1

Dockets 1, 13, 17.

2

Dockets 34-36.

3

Dockets 37-39.

fact and the movant is entitled to judgment as a matter of law.” The burden of
showing the absence of a genuine dispute of material fact initially lies with the
moving party. 4 If the moving party meets this burden, the non-moving party must
present specific factual evidence demonstrating the existence of a genuine issue
of fact. 5
When considering a motion for summary judgment, a court must accept as
true all evidence presented by the non-moving party and draw “all justifiable
inferences” in the non-moving party’s favor. 6 Further, the court is mindful that it
must liberally construe the pleadings of a self-represented plaintiff, and give the
plaintiff the benefit of any doubt. 7 But “[i]f the moving party shows that there are
no genuine issues of material fact, the non-moving party must go beyond the
pleadings and designate facts showing an issue for trial. . . . A scintilla of evidence
or evidence that is merely colorable or not significantly probative does not present
a genuine issue of material fact.” 8

4

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

5

Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

6

Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

7

See Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010) (“[O]ur ‘obligation’ remains [after
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)], ‘where the petitioner is pro se, particularly in
civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit
of any doubt.’”) (citation omitted).

8

Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (citations omitted).

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Order Re Motion for Summary Judgment
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III. FACTS
In his Complaint, Mr. Sanderson asserts, under penalty of perjury, 9 that
Dr. Michael Boothe, a dentist employed by the Alaska Department of Corrections
(DOC), has been deliberately indifferent to his serious medical needs in violation
of the Constitution’s Eighth Amendment. 10

In his First Claim for relief, Mr.

Sanderson alleges as follows:
Dr. Boothe has pulled most of my chewing teeth out and for an
ongoing and ever long time has refused to [relieve] my pain and
suffering with a set of dentures. I can’t eat [the] food provided to me
by the Department of Corrections. I have lost weight and sleep over
. . . not being able to chew my food correctly without pain. I continue
to ask Dr. Boothe for my medica[l]ly needed dentures, to no avail . . .
He just swears at me and yells[,] acting as if my serious medical need
isn’t his problem. And he did nothing to cause it by all of the teeth he
had extracted thr[ough] many visits thr[ough] lots of years. The
subhuman treatment and maliciousness that Dr. Boothe treats me
with is at best professional negligence. Added with his oppressive
character[,] I am in fear of him and his tyrannical dental practices to
improperly treat and delay needed dental treatment on prisoners. His
actions are still causing me pain and decreased health to this day.
This dentist should not be permitted to do dental work on prisoners or
anyone. He is cruel and vengeful towards the people he does dental
work on. . . . 11
Mr. Sanderson also alleges a state law malpractice claim against Dr.
Boothe. In Claim Two of the Complaint, Mr. Sanderson alleges as follows:

9

Docket 1 at 10.

10

Id. at 3-4.

11

Id. at 3.

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After pulling most of my chewing teeth, [Dr. Boothe did] not giv[e] me
dentures to chew my food with. His actions towards me put me in fear
to even see him for dental work. He yells and swears at me under his
breath as he works on me. Look I can’t go to my own dentist. And I
was never nervous about dentists before hav[ing] to see Boothe,
DDS. I have nightmares about seeing the dentist now because of
him. And I can’t eat right without pain. This has been going on for
over a year [or] much longer. 12
Dr. Boothe has filed a Declaration under penalty of perjury in support of his
Motion for Summary Judgment. 13 In his Declaration, Dr. Boothe states that he is
the chief dental officer for the DOC, providing care in Anchorage, Eagle River,
Palmer, Wasilla and Kenai, Alaska, and that he was the only dentist providing care
in the area during the time at issue in this lawsuit. 14 Both parties cite to Alaska
DOC Policy and Procedure (P&P) No. 807.12. 15 Dr. Boothe states that P&P No.
807.12 “governs the provision of dental care within DOC facilities. Necessary
dental services are defined under the P&P as ‘dental work required to provide for
the maintenance and nutrition and/or the prevention of pain,’ but ‘does not include
cosmetic and long-term growth and development dental techniques[.]’” 16

12

Id. at 4.

13

Docket 36.

14

Id. at 2.

15

Docket 36 at 3; Docket 38 at 3; Dockets 36-1 and Docket 38-1 (DOC Policies and
Procedures 807.12, 807.15, 807.17).

16

Docket 36 at 3; Dockets 36-1 at 1, 38-1 at 1 (P&P 807.12 V).

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Dr. Boothe further states that “partial or full dentures ‘may be provided in
accordance with [P&P] 807.17 . . . if, in the clinical and professional judgment of
the treating dentist, the dental work is deemed appropriate and endorsed by a
consulting dentist and approval by the Department Medical Officer is obtained in
advance[.]” 17

Dental procedures, including the provision of dentures, are

prioritized within a classification system ranging from “very urgent” to “maintenance
care[,]” and are “provided within the limitations of necessary dental services and
available resources.” 18

In particular, dentures are allowed “(1) when necessary

for the proper mastication of food, (2) when approved by the Medical Advisory
Committee, and (3) when the subject prisoner will remain at the institution for
sufficient time to complete the work.” 19

Dentures, however, “are considered

contraindicated for individuals who are unable to care for dentures and unable to
maintain good oral hygiene.” 20 In his Declaration, Mr. Sanderson disputes none
of the above. 21
Mr. Sanderson’s dental records show that “he was seen by the DOC dental
department at least fourteen times between when he first requested dental care in

17

Docket 36 at 3; Dockets 36-1 at 2, 38-1 at 2 (P&P 807.12 VI E).

18

Docket 36 at 3; Dockets 36-1 at 3, 10, 38-1 at 3, 10 (P&Ps 807.12 VI F, 807.17 VII).

19

Docket 36 at 3-4.

20

Id. at 4.

21

Docket 38.

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October 2012 and when he filed this lawsuit.” 22 Mr. Sanderson’s first appointment,
on November 19, 2012, was with a dental hygienist who noted that “Mr.
Sanderson’s teeth and mouth were in a state of ‘general dental neglect,’ including
nine teeth missing, multiple teeth with visible decay, and two teeth (nos. 9 and 10)
with active abscessed infections.” 23 On November 30, 2012, Dr. Boothe extracted
infected teeth nos. 9 and 10, also noting that Mr. Sanderson’s oral hygiene was
poor. 24 Mr. Sanderson did not appear for his December 7, 2012 appointment. On
December 21, 2012, in response to another request by Mr. Sanderson, Dr. Boothe
filled a cavity and extracted a root tip. 25 Shortly thereafter, Mr. Sanderson again
requested dental care but did not appear for his appointment on December 28,
2012. 26 Mr. Sanderson has not disputed the above chronology, but has explained
that he was not informed of the December 28th appointment. 27

22

Docket 36 at 5; Docket 36-2 (Exhibit B - Initial Dental Record).

23

Docket 36 at 6; Docket 36-2 at 1.

24

Docket 36 at 7; Docket 36-2 at 1.

25

Id.

26

Docket 36 at 7; Docket 36-2 at 2; Docket 36-3 (Exhibit C – Requests for Medical/Health
Care and Cop-Outs) at 5.
27

Docket 38; Docket 36-3 at 9 (Mr. Sanderson states: “It was told to me that I was a no
show but I had no knowledge about [the appointment]. I work KP.”).
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Defendant asserts that “[i]n January 2013, Mr. Sanderson began requesting
to be provided dentures.” 28 Dr. Boothe claims that Mr. Sanderson failed to respond
when Dr. Boothe asked him, on January 20 and 26, 2013, “whether he was ‘in pain
or swollen today,’” so that Dr. Boothe could determine whether dentures were
medically necessary. 29 But in a request for an interview dated January 26, 2013,
Mr. Sanderson requested dentures and wrote, “I am in pain[.]” 30 And on February
3, 2013, Mr. Sanderson requested a “bad tooth” be pulled, again asserting “I am
in severe pain.” 31
Shortly after the February 3, 2013 request, on February 8, 2013, Dr. Boothe
extracted the problematic tooth. 32 Over the course of the ensuing months, Mr.
Sanderson continued to complain about pain, and Dr. Boothe pulled several more
of Mr. Sanderson’s teeth, examined him many times, discussed oral hygiene with
him, calculated his BMI (which was in the middle of normal), and x-rayed a tooth. 33
In addition, Mr. Sanderson was given a thorough teeth cleaning, although the

28

Docket 36 at 8.

29

Id.; Docket 36-3 at 8-10.

30

Docket 36-3 at 9.

31

Docket 36-3 at 11.

32

Docket 36 at 8-9.

33

Docket 36 at 9-17; Docket 36-2 at 2-3.

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“heavy black calcifications [on his teeth] . . . were not removed by the ultrasonic
cleaning tool.” 34
Dr. Boothe states that on occasion his “clinical observations did not
substantiate Mr. Sanderson’s complaints.” 35
While Mr. Sanderson has alleged gum and tooth pain, his dental
treatment records have not substantiated those subjective
complaints. . . . [H]is mouth is far healthier now than when he entered
custody and became my patient. He does not have any of the signs
and symptoms of gum or mouth injury or pathology that one would
expect to find in a patient with the concerns he alleges. . . . [Although]
Mr. Sanderson [complains] that he is unable to ‘masticate [his] food’ .
. . [his] medical chart reflects that his weight has actually increased
since the extraction of the teeth[;] . . . the diet in DOC facilities consists
largely of cooked vegetables, ground meat and eggs, canned fruit,
bread and pasta – all foods that can be ingested with minimal
chewing[;] . . . [and] Mr. Sanderson has never requested a soft diet[.] 36
However, “[o]n January 21, 2014, [Dr. Boothe] submitted a request to the Medical
Advisory Committee, asking that the Committee evaluate Mr. Sanderson’s request
for dentures.” 37 Although Dr. Boothe states that he did not believe Mr. Sanderson
was a good candidate for dentures or that they were medically necessary, he

34

Docket 36 at 16; Docket 36-2 at 3.

35

Id. at 10.

36

Id. at 21-22.

37

Id. at 17; see also Docket 36-4 (Exhibit D – Prisoner Health Care Authorization form).

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concluded that the decision as to whether to provide dentures should be made by
the Committee. 38 The Committee denied Mr. Sanderson’s dentures request. 39
Mr. Sanderson continued to complain of ongoing dental problems and
continued to request dentures. 40 But “[s]ince filing this lawsuit, [he] has not sought
further dental care or otherwise submitted any evidence suggesting a change in
dental circumstances.” 41
Stephen Maloney, DMD, who provided dental services to DOC inmates from
1990 – 2007, states in his Declaration that he reviewed Mr. Sanderson’s dental
chart and Dr. Boothe’s Declaration. 42 Dr. Maloney concludes that “based upon a
reasonable degree of dental certainty . . . the dental care Mr. Sanderson has
received while in DOC custody has met or exceeded the standard of care.” 43
Further, when “Mr. Sanderson entered custody [his teeth were] in a general state
of dental neglect, with several prominent dental problems, such as active infections
and teeth in need of extraction.” 44 But “[o]ver an approximately fourteen month38

Docket 36 at 17.

39

Id.; Docket 36-4.

40

Docket 36 at 17-19.

41

Id. at 21.

42

Docket 35 at 2.

43

Id.

44

Id.

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period of time, DOC dentist Michale Boothe and his staff have timely treated the
various active infections of Mr. Sanderson’s teeth and gums, filled teeth that could
be salvaged, extracted teeth that required extraction, and worked to generally
enhance Mr. Sanderson’s oral health.” 45 Moreover, Dr. Maloney concludes that
“based upon a reasonable degree of dental certainty . . . the standard of care does
not require that dentures be provided to this patient. . . . Dentures are considered
medically necessary where a patient is unable to chew food, and therefore is
unable to get sufficient nutrition to maintain a healthy body weight. . . . Mr.
Sanderson’s chart reflects no swelling, redness, ulcers, or any other evidence to
support a finding that his partial edentulism is causing pain. In the absence of such
visible evidence, the standard of care does not dictate that dentures must be
provided to this patient.” 46
Mr. Sanderson, in his responsive Declaration, states as follows:
I have significant trouble eating. I’m missing ½ of my teeth. Although
my Body Mass Index is normal, maintaining health has been very
difficult. Some foods I cannot chew at all and have to trade for softer
items from my table-mates. Luckily people sympathize with my
condition and help me to eat. I really need dentures [but] [t]here is
always some requirement I do not meet although I am virtually
toothless. . . . I’ve now spent weeks in that chair, with as many
appointments and the steady decline of my dental condition, dentures
are an inevitability. They are needed now though Dr. Boothe and I
are in disagreement. If nothing else, please have another specialist
evaluate
my
condition
for
a
second
opinion.
45

Id.

46

Id. at 3-4.

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Standards of Administration in Juneau [DOC] agrees with my
explanation in the correspondence I have sent. . . . I need dentures. 47
In his Declaration, Dr. Boothe states as follows:
On some occasions, where time and budgetary constraints allow, the
MAC has approved and I have provided non-medically necessary
dentures to inmates serving longer sentences (generally inmates with
more than five years to serve), where such inmates were determined
to be good candidates for dentures and where dentures were judged
to serve rehabilitative purposes. For inmates with fewer than five
years to serve, such as Mr. Sanderson, dentures are only provided
when determined to be medically necessary. 48
But with his Declaration, Mr. Sanderson submits Dr. Boothe’s response to his
February 8, 2013 request for medical care, in which Dr. Boothe states that “the
State does not consider dentures for people serving under 5 years.” 49
IV. DISCUSSION
A.

Dr. Boothe has not been deliberately indifferent to Mr. Sanderson’s serious
medical needs.
“Dental care is one of the most important medical needs of inmates.” 50 To

state a claim under the Eighth Amendment for violations involving medical care, a
prisoner must show that a defendant has been deliberately indifferent to his serious

47

Docket 38 at 1-2.

48

Docket 36 at 4 (emphasis in original); see also Dockets 36-1 at 10, 38-1 at 10 (P&P
807.17 VIII B 4 (“Prosthetic care should only be initiated when the subject prisoner will
remain at the institution for a length of time sufficient for completion of work.”).
49

Docket 38-1 at 13.

50

Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir.1989) (citation omitted).

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medical needs. 51 A “showing of nothing more than ‘a difference of medical opinion’
as to the need to pursue one course of treatment over another [i]s insufficient, as
a matter of law, to establish deliberate indifference. In other words, where a
defendant has based his actions on a medical judgment that either of two
alternative courses of treatment would be medically acceptable under the
circumstances, plaintiff has failed to show deliberate indifference, as a matter of
law.” 52
“A medical need is serious if failure to treat it will result in ‘significant injury
or the unnecessary and wanton infliction of pain.’ . . . A prison official is deliberately
indifferent to that need if he ‘knows of and disregards an excessive risk to inmate
health.’” 53
To establish an Eighth Amendment violation, a plaintiff must satisfy
both an objective standard—that the deprivation was serious enough
to constitute cruel and unusual punishment—and a subjective
standard—deliberate indifference.
To meet the objective standard, the denial of a plaintiff’s serious
medical need must result in the “unnecessary and wanton infliction of
pain.”
The subjective standard of deliberate indifference requires
“more than ordinary lack of due care for the prisoner’s interests or
51

Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“Regardless of how evidenced, deliberate
indifference to a prisoner’s serious illness or injury states a cause of action under
§ 1983.”).
52

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.), cert. denied, 519 U.S. 1029 (1996)
(citing Estelle, 429 U.S. at 107-08).

53

Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc) (citations and further
internal quotation marks omitted).
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safety.” . . . The state of mind for deliberate indifference is subjective
recklessness. 54
Mr. Sanderson has not met either standard. To the contrary, the evidence
shows that Mr. Sanderson has received an extensive amount of dental care from
Dr. Boothe and that his dental health has improved as a result. Dr. Boothe’s
conclusions regarding dentures are supported by former DOC dentist, Dr.
Maloney, as well as by DOC’s Medical Advisory Committee. Whether or not Mr.
Sanderson might have been provided dentures for other than medically necessary
reasons if he had more than five years to serve is immaterial to his Eighth
Amendment claim. 55

Nor are Mr. Sanderson’s personal beliefs and opinions

regarding dentures relevant to the Court’s determination of this claim.

As

explained above, even if Mr. Sanderson were a dentist himself, such differences
of opinion would not demonstrate deliberate indifference by Dr. Boothe under the
Eighth Amendment. Thus, even when viewing all the evidence in the light most
favorable to Mr. Sanderson and drawing all reasonable inferences therefrom for

54

Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (quoting Estelle, 429 U.S. at 104
and Farmer v. Brennan, 511 U.S. 825, 835 (1994)) (internal citation omitted) (emphasis
added), overruled on other grounds, Peralta, 744 F.3d at 1083.
55

Further, the few factual disagreements between the parties, noted above, such as the
reason Mr. Sanderson missed dental appointments, and when or whether Mr. Sanderson
responded to questions from Dr. Boothe regarding pain or swelling, are not genuine
issues of fact that are material to the Court’s ruling.
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purposes of this summary judgment motion, Dr. Boothe is entitled to summary
judgment on the Eighth Amendment claim.
B.

The Court declines to exercise supplemental jurisdiction over Mr.
Sanderson’s state malpractice claim.
Pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise

supplemental jurisdiction over Mr. Sanderson’s state law claim, as Mr.
Sanderson’s sole federal claim will be dismissed. 56
IT IS THEREFORE ORDERED:
1.

The Motion for Summary Judgment, at Docket 34, is GRANTED as to Claim

One of the Complaint. The Court declines to exercise supplemental jurisdiction
over Claim Two, which alleges a state law malpractice claim.
2.

This case is DISMISSED. Claim One is dismissed with prejudice; Claim

Two is dismissed without prejudice.
3.

The Clerk of Court is directed to enter a Judgment for the Defendant in this

case that is consistent with this Order.
DATED at Anchorage, Alaska, this 17th day of July, 2015.
/s/ SHARON L. GLEASON
United States District Judge

56

See Sanford v. MemberWorks, Inc., 483 F.3d 956, 965 (9th Cir. 2007).

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