Ramirez #105298 v. Ryan et al

Filing 28

ORDER - The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 25). Defendants' Motion for Summary Judgment (Doc. 25 ) is granted, and the action is terminated with prejudice. The Clerk shall enter judgment accordingly. Signed by Judge David G Campbell on 4/30/18. (DXD)

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KAB

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Candelario H. Ramirez,

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No. CV 16-04305-PHX-DGC (BSB)

Plaintiff,
v.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff Candelario H. Ramirez, who was formerly in the custody of the Arizona

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Department of Corrections (ADC), brought this civil rights action pursuant to 42 U.S.C.

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§ 1983. (Doc. 5.) Defendants move for summary judgment. The Court provided notice

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to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc)

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regarding the requirements of a response (Doc. 27), but Plaintiff did not file a response.

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I.

Background

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In his First Amended Complaint, Plaintiff alleged as follows. On February 15,

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2015, Plaintiff went to medical complaining that his jaw was broken. (Doc. 5 at 5.) Dr.

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Dinkha, the dentist, recommended that Plaintiff be sent to Desert Valley Oral Surgery for

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repair of a left mandible fracture in his jaw. (Id.) On February 19, 2015, Plaintiff went to

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Desert Valley Oral Surgery and his jaw was wired shut. (Id.) Plaintiff thought the wires

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were too loose, reported this to Dr. Dinkha, and she stated that Plaintiff would be seen in

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a few weeks. (Id.) Because Plaintiff’s jaw was wired incorrectly, he developed an

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abscess and experienced excruciating pain. (Id.) Plaintiff repeatedly requested to be seen

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by a doctor over the next few weeks as the abscess grew to the size of a tennis ball,

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became infected, and began to leak puss. (Id.) Plaintiff began to refuse his insulin

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because he believed this refusal would result in medical care to his jaw. (Id. at 6.)

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On March 12, 2015, Plaintiff was called in to see a dentist. (Id. at 6-7.) On

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March 16, 2015, a different dentist decided to send Plaintiff for emergency treatment.

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(Id. at 7.) On March 20, 2015, Plaintiff was transferred to Banner Health Hospital and

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underwent emergency oral surgery. (Id. at 8.) Plaintiff was then hospitalized at ADC-

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Florence in a medical unit, where he received treatment for an extended period. (Id.)

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In May of 2016, Plaintiff submitted an HNR requesting treatment for recurring

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urgent dental problems, abscess, infection, and pain and suffering. (Id. at 9.) In June of

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2016, Plaintiff lost consciousness and was sent to “emergency” as a result of continued

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lack of timely dental treatment.

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constitutionally inadequate medical care and delays in treatment of his dental problems

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due to policies, practices, or customs instituted by Defendants Ryan and Pratt. (Id.)1

(Id. at 8-9.)

Plaintiff alleged that he received

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On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff

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stated Eighth Amendment claims based on deliberate indifference to serious medical

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needs against Defendants Ryan and Pratt. (Doc. 6.) The Court dismissed the remaining

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claims and Defendants. (Id.)

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II.

Summary Judgment Standard

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A court must grant summary judgment “if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter

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of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

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(1986). The movant bears the initial responsibility of presenting the basis for its motion

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and identifying those portions of the record, together with affidavits, if any, that it

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believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at

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323.

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Plaintiff was released from ADC custody in April 2017. (Doc. 26 ¶ 3.)
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If the movant fails to carry its initial burden of production, the nonmovant need

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not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d

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1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the

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burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that

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the fact in contention is material (a fact that might affect the outcome of the suit under the

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governing law) and that the dispute is genuine (the evidence is such that a reasonable jury

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could return a verdict for the nonmovant). Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th

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Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its

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favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968), but he

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must “come forward with specific facts showing that there is a genuine issue for trial.”

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

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(internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

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At summary judgment, the judge’s function is not to weigh the evidence and

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determine the truth, but to determine whether there is a genuine issue for trial. Anderson,

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477 U.S. at 249.

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inferences in his favor. Id. at 255. The court need consider only cited materials, but it

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may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

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III.

The court must believe the nonmovant’s evidence and draw all

Facts

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Because Plaintiff did not file a response to the Motion for Summary Judgment, the

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Court will construe Plaintiff’s verified First Amended Complaint as an affidavit in

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opposition to the summary judgment motion. See Jones v. Blanas, 393 F.3d 918, 923

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(9th Cir. 2004) (allegations in a pro se plaintiff’s verified pleadings must be considered as

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evidence in opposition to summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460

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(9th Cir. 1995) (verified complaint may be used as an affidavit opposing summary

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judgment if it is based on personal knowledge and sets forth specific facts admissible in

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evidence). But to the extent Plaintiff failed to controvert Defendant’s facts in his First

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Amended Complaint, the Court will assume those facts are uncontroverted for the

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purposes of this Order. Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (If a

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summary judgment motion is unopposed, Rule 56 “authorizes the court to consider a fact

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as undisputed.”).

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On February 16, 2015, Plaintiff was seen by Nurse Practitioner (NP) Smith for

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pain in his jaw. Plaintiff reported that he was in a fight the day before and that his jaw

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felt broken. (Doc. 26 ¶ 7.) Plaintiff could open his mouth, but was unable to chew, and

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an x-ray was consistent with a mandible fracture. (Id. ¶ 7.) Plaintiff was scheduled to see

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dental the next day. (Id.) On February 17, 2015, Plaintiff was seen by Rommel Dinkha,

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DDS, who noted that Plaintiff’s occlusion was off and that he had a linear laceration

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between teeth #22 and #23 extending from the buccal to the floor of the mouth lingually;

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Plaintiff reported pain at 10/10, a soft diet was recommended, medications were

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provided, and Plaintiff was to be seen ASAP. (Id. ¶ 8.) On February 19, 2015, Plaintiff

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was seen offsite at Desert Valley Oral Surgery and had surgery for his left mandible

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fracture. (Id. ¶ 9.) Plaintiff had a closed reduction and arch bars were placed in

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Plaintiff’s mouth; Plaintiff was to wear the arch bars for eight weeks and return for

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evaluation. (Id.) The doctor noted that if the arch bars were to come off, it was critical

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that Plaintiff be scheduled for replacement of the arch bars. (Id.) Plaintiff was placed on

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a liquid diet for eight weeks, given antibiotic medications for fourteen days, and

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prescribed oral rinses twice daily. (Id.)

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On February 20, 2015, Plaintiff was seen for follow up by David Lewis, DDS in

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the dental clinic. Lewis approved the surgeon’s notes and approved recommendations for

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a liquid diet, antibiotics, pain medications, and the eight-week follow-up. (Id .¶ 10.) On

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March 12, 2015, Plaintiff was seen in the dental clinic by Dr. Williams, DDS because

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nursing informed Dr. Williams that Plaintiff’s arch bars had been removed. (Id. ¶ 11.)

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Plaintiff complained that the majority of his arch bars were loose and that he had

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removed the rest himself. He also reported a lump under his chin and stated that the

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surgery was not done correctly. (Id.) Plaintiff’s oral cavity was irrigated and Dr.

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Williams told Plaintiff that she would discuss the situation with her supervisor and

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follow-up with him the next day. (Id.)

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On March 13, 2013, Dr. Williams consulted with Dr. Gray, who gave instructions

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to send Plaintiff out STAT to the treating oral surgeon at Desert Valley Queen Creek. Dr.

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Gray stated that Plaintiff should be informed that if he removed his wires again or was

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non-compliant with dental/oral surgery orders, no additional cost or treatment would be

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incurred. (Id. ¶ 12.) Plaintiff signed this note. (Id.)

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On March 19, 2015, Plaintiff underwent oral surgery at Banner Good Samaritan

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Hospital consisting of osteotomy and malunion of mandibular fracture and incision and

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drainage of abscess. Plaintiff was released from the hospital on March 29, 2015. (Id. ¶¶

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14-15.)

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On March 30, 2015, Plaintiff was seen by Dr. Vukcevic in the infirmary, who

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noted that the mandible incision was healing well. (Id. ¶ 16.) On April 2, 2015, Plaintiff

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was seen by Dr. Lines, DDS, who noted that Plaintiff did not have any rubber bands in

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his mouth, though there were rubber bands at his bedside. Dr. Lines placed rubber bands

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in Plaintiff’s mouth and told Plaintiff to speak only when necessary. (Id. ¶ 17.) Dr. Lines

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noted that Plaintiff appeared to be healing normally. (Id.) On April 3, 2015, Plaintiff

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was again advised by nursing staff to keep his rubber bands on and his jaw still. (Id.

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¶ 18.) On April 7, 2015, Plaintiff was seen by Dr. Lines, who noted that Plaintiff broke

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all his rubber bands since the last visit. Plaintiff reported more pain and that the pain

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medications were less effective. (Id. ¶ 19.) Dr. Lines diagnosed Plaintiff with possible

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candidiasis on gingiva, otherwise healing normally, ordered more rubber bands, and

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requested an off-site visit. Plaintiff’s pain medications and antibiotic were continued.

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(Id.) On April 8, 2015, Plaintiff was seen for assessment of acute osteomyelitis of

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mandible following osteotomy, debridement, and reconstruction of mandible as well as

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incision and drainage of abscess. Plaintiff was discharged with instructions to irrigate his

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mouth with Chlorhexidine mouth rinse. (Id. ¶ 20.) On April 15, 2015, Plaintiff was seen

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by Dr. Lines, who noted that Plaintiff’s buccal mucosa on lower left anterior was pink

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and that Plaintiff was receiving adequate pain medications. (Id. ¶ 21.)

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On May 13, 2015, Plaintiff saw Dr. Johnson, who discussed weaning narcotics

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with Plaintiff. Plaintiff stated his pain was well-controlled and Dr. Johnson discharged

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Plaintiff from the infirmary. (Id. ¶¶ 22-23.) On June 17, 2015, Plaintiff’s arch bars were

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removed. (Id. ¶ 24.) On June 18, 2015, Plaintiff was seen by Dr. Smith in the Dental

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Clinic, who noted “All external oral fixation devices have been removed; visible oral

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tissues well healed/scarred; no discomfort and stable occlusion.” (Id. ¶ 25.) On July 6,

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2015, Plaintiff was told he could resume his regular diet and was given exercises to

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perform. NP Lyons requested an occlusal guard from dental if able. (Id. ¶ 27.) On

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July 8, 2015, Plaintiff was evaluated for the occlusal guard. (Id. ¶ 28.) On August 9 and

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25, 2015, Plaintiff submitted Health Needs Requests (HNRs) stating that he was in pain

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from his jaw injury. (Id. ¶ 29.)

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On August 27, 2015, Plaintiff was seen in the dental urgent care clinic, where the

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doctor noted that Plaintiff was complaining of pain, that he had not yet received an

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occlusal guard, and that his “mandibular fx looks to be closed, healing.

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obviously unusual with the mandibular bone other than the fixation bars.” The doctor

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noted that she would request an occlusal guard and seek a consult with the Banner

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operating surgeon. (Id. ¶ 31.) On September 4, 2015, Plaintiff was seen in dental to

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obtain impressions for his occlusal guard. The doctor noted that Plaintiff’s mandible

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continued to heal well and that he was approved for an occlusal guard. (Id. ¶ 32.) On

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October 23, 2015, Plaintiff submitted an HNR complaining of intolerable pain from his

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jaw injury. (Id. ¶ 33.) On October 28, 2015, Plaintiff was seen in the Dental Urgent

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Care. The doctor noted that Plaintiff was complaining of pain in tooth #19 and that a

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filling in that tooth was necessary. The doctor gave Plaintiff a temporary filling. (Id.

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¶ 34.) On November 22, 2015, Plaintiff submitted an HNR requesting fillings and a

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cleaning. (Id. ¶ 35.)

Nothing

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On January 6, 2016, Plaintiff was seen for a dental call back for delivery of his

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night guard. Plaintiff complained of pain in his upper right tooth #5, and the doctor

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recommended extraction. Plaintiff agreed to the extraction and Dr. Harling extracted the

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tooth and delivered Plaintiff’s night guard. (Id. ¶ 36.) On February 25, 2016, Plaintiff

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was seen for routine dental treatment. (Id. ¶ 37.) On April 29 and May 2, 2016, Plaintiff

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submitted HNRs stating that he has pain when he eats. (Id. ¶¶ 38-39.) On May 10, 2016,

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Plaintiff was seen in the Dental Urgent Care and said he could not eat on his left side. An

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x-ray was taken, and Dr. Wright referred Plaintiff for follow-up at Banner for evaluation

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of possible extraction of tooth #22 and any additional treatment. (Id. ¶ 40.)

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On May 31, 2016, Plaintiff was seen at Banner Health, where the doctor noted no

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swelling or signs of mandibular hardware failure, but that Plaintiff was having pain

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lingual to tooth #18 and #19 and buccal to tooth #22. The doctor noted that without 3D

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imaging it was difficult to determine if it was a dental problem or related to failing

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mandibular hardware.

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determine the cause of Plaintiff’s pain. (Id. ¶ 41.) On June 6, 12, and 14, 2016, Plaintiff

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submitted HNRs complaining of extreme pain.

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Plaintiff was seen by a registered nurse (RN) with complaints of extreme weakness and

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dizziness. The nurse documented swelling on the right jaw down to the neck and

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tenderness when palpating the neck and Plaintiff complained of pain when swallowing.

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Plaintiff was sent to Florence Hospital. (Id. ¶ 45.) At Florence Hospital, the doctor gave

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Plaintiff a nerve block in the left mandible region and incision and draining of an abscess

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of the left buccal mucosa. Plaintiff was discharged with broad-spectrum antibiotics,

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continuous warm salt water rinses, and non-steroidal anti-inflammatories to control his

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pain. (Id. ¶ 46.)

The doctor ordered a maxillofacial CT without contrast to

(Id. ¶¶42-44.)

On June 15, 2016,

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On June 16, 2016, Plaintiff was seen by an RN, who noted that the lower left jaw

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area was tender to touch and swollen, but no redness or streaking and no warmth to the

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area. Plaintiff’s oral mucosa were pink and moist with no active draining or bleeding

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noted and no loose teeth. (Id. ¶ 47.) On June 26, 2016, Plaintiff submitted an HNR

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stating that his abscess had not subsided and that he needed more pain medication. (Id.

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¶ 48.) On June 28, 2016, Plaintiff was seen by Larry Russell, DDS, who prescribed a

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different antibiotic and recommended a consult with the offsite provider concerning the

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healing of the mandible/fracture surgery and whether extraction was contraindicated. (Id.

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¶ 49.) That same day, the results of Plaintiff’s CT Maxillofacial were reviewed. The

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Findings/Impression suggested “clinical correlation and if clinically warranted, nuclear

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medicine triple phase bone scan” to provide additional information. Plaintiff was sent to

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AZ Tech Radiology for the tests. (Id. ¶ 50.) On June 30, 2016, Plaintiff submitted

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another HNR complaining of pain, and on July 1, 2016, Plaintiff refused his insulin

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because he wanted to be seen by dental. (Id. ¶¶ 51-52.)

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On July 15, 2016, Plaintiff was seen by a nurse with complaints of pain, shivering,
dizziness, and statements that his abscess was back.

The nurse documented that

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Plaintiff’s left lower cheek was swollen and tender to the touch and his gums were red

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and swollen. (Id. ¶ 53.) Plaintiff was given Toradol, 30 mg., Phenergan, and transported

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to Mountain Vista Hospital for IV antibiotics and pain medications for tooth abscess. (Id.

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¶ 53.) At the hospital, Plaintiff was started on antibiotics and scheduled for debridement

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of the mandible. (Id. ¶ 54.) On July 18, 2016, Dr. Faibisoff performed surgery for

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removal of buried hardware and removal of teeth #18 and #19, with drainage of

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periodontal abscess. (Id. ¶ 55.) On July 19, 2016, Plaintiff was seen in dental and given

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the medications recommended by the oral surgeon. (Id. ¶ 56.) On July 21, 2016,

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Plaintiff was seen for an urgent dental care appointment. The doctor noted that Plaintiff’s

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gums were slightly inflamed with no redness and Plaintiff was scheduled for re-

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evaluation on the 28th. (Id. ¶ 57.) On July 22, 2016, Plaintiff was seen by LPN

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Viridiana for complaints that his stiches were coming out and his lip was not attached to

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his gums. Plaintiff was transferred to the hospital. (Id. ¶ 58.)

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On July 23, 2016, Plaintiff returned from the hospital and complained that the

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hospital did not help him and he was in pain. The nurse noted some improvement. The

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on-call provider prescribed Tylenol #3, continuation of Clinadmycin, salt water rinses,

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Ensure BID, a liquid diet, and told the nurse to fax hospital paperwork “for plastic

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surgeon f/up.” (Id. ¶ 59.) On July 25 and 26, 2016, Plaintiff submitted HNRs stating that

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all of his stiches had fallen out and that the Tylenol was not controlling his pain. (Id.

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¶¶ 60-61.) On July 26, 2016, Plaintiff was seen in the Urgent Care. The doctor requested

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emergency oral surgery. (Id. ¶ 62.) On August 3, 2016, Plaintiff was again seen in the

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dental clinic, and it was noted that Plaintiff had been sent off-site for oral surgery, but

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that the visit was preempted by an emergency at the oral surgeon’s office. Plaintiff was

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rescheduled for surgery. (Id. ¶ 64.) On August 5, 2016, Plaintiff was seen for a dental

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follow-up. The doctor recommended a follow-up with the doctor at Banner and noted

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that Plaintiff had no infection. (Id. ¶ 65.) Also on August 5, 2016, Plaintiff was seen by

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Dr. Faibisoff, who noted that the wound was gradually healing, was clean, and there was

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no infection. (Id. ¶ 66.) On August 10, 2016, Plaintiff was seen for suture removal of the

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lower anterior vestibule. Plaintiff reported that he was much better and no longer in pain.

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(Id. ¶ 67.) The doctor noted that the sutures were intact with no edema, and told Plaintiff

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he would have to be sent to an oral surgeon for treatment. (Id. ¶ 67.)

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On August 23, 2016, Plaintiff was seen by the doctor at Banner, who noted that

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Plaintiff’s acute osteomyelitis was resolved, and a CT was taken. (Id. ¶ 68.) The same

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day, Plaintiff was seen by nursing, who noted a follow-up in four to six weeks if Plaintiff

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still had an open wound. (Id. ¶ 69.) On November 6, 2016, Plaintiff submitted an HNR

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stating that his jaw was starting to hurt again when he eats. (Id. ¶ 70.) On November 8,

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2016, Plaintiff was seen by a doctor, who assessed that Plaintiff probably had nerve

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damage to tooth #22. (Id. ¶ 71.)

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Defendant Ryan, the Director of the ADC, delegated his duty to review grievance

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appeals to Jeff Hood, who responded to two of Plaintiff’s grievances on October 4 and

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October 30, 2015. (Id. ¶ 82.) Plaintiff sent an Inmate Letter to Director Ryan dated

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October 23, 2015, which was responded to by Connie Hawley, LPN. (Id. ¶¶ 85-86.)

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Defendant Pratt is the Assistant Director of ADC’s Health Services Contract Monitoring

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Bureau (HSCMB) and did not have any involvement in Plaintiff’s care. (Id. ¶¶ 90-96.)

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IV.

Discussion

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Under the Eighth Amendment standard, a prisoner must demonstrate “deliberate

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indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976).) There are two prongs to the

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deliberate-indifference analysis: an objective standard and a subjective standard. First, a

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prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations omitted.)

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A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could result

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in further significant injury or the ‘unnecessary and wanton infliction of pain.’”

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by

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WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal

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citation omitted.)

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Second, a prisoner must show that the defendant’s response to that need was

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deliberately indifferent.

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indifferent to a prisoner’s serious medical needs when they deny, delay, or intentionally

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interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)

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(internal citations and quotation marks omitted.) Deliberate indifference may also be

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shown by the way in which prison officials provide medical care, Hutchinson v. United

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States, 838 F.2d 390, 394 (9th Cir. 1988), or “by circumstantial evidence when the facts

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are sufficient to demonstrate that a defendant actually knew of a risk of harm.” Lolli v.

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County of Orange, 351 F.3d 410, 421 (9th Cir. 2003.) Deliberate indifference may also

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be shown by a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need. Jett, 439 F.3d at 1096.

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Jett, 439 F.3d at 1096.

“Prison officials are deliberately

But the deliberate-indifference doctrine is limited.

An inadvertent failure to

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provide adequate medical care or negligence in diagnosing or treating a medical

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condition does not support an Eighth Amendment claim. Wilhelm v. Rotman, 680 F.3d

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1113, 1122 (9th Cir. 2012) (citations omitted.) Further, a mere difference in medical

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opinion does not establish deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332

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(9th Cir. 1996).

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Moreover, in a case like this, to prove a claim based on a policy, practice or

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custom of Defendant, Plaintiff must provide evidence showing (1) that his Eighth

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Amendment rights were violated by an employee or employees of the Defendant; (2) that

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the Defendant has customs or policies that amount to deliberate indifference; and (3) that

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the policies or customs were the moving force behind the violation of Plaintiff’s

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constitutional rights in the sense that the Defendant could have prevented the violation

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with an appropriate policy. See Gibson v. County of Washoe, 290 F.3d 1175, 1193-94

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(9th Cir. 2002). “Policies of omission regarding the supervision of employees . . . can be

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policies or customs that create . . . liability . . . , but only if the omission reflects a

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deliberate or conscious choice to countenance the possibility of a constitutional

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violation.” Id. at 1194 (quotations omitted).

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Plaintiff does not produce any evidence that he was denied or delayed treatment

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due to any policy, practice, or custom by Defendants Ryan and Pratt or due to the lack of

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a policy. In his First Amended Complaint, Plaintiff primarily complains that he did not

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receive adequate treatment between February 19, 2015 and March 12, 2015, but the

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medical records show that Plaintiff was scheduled for follow-up in eight weeks following

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his surgery. There is no evidence in this record that not having a follow-up for eight

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weeks was the result of deliberate indifference to Plaintiff’s serious medical needs or was

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the result of a policy, practice, or custom of the Defendants. Likewise, Plaintiff alleges in

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his First Amended Complaint that he experienced problems in May and June of 2016 due

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to lack of timely medical treatment, but Plaintiff’s medical records and the evidence in

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the record do not support this assertion or that any delay in treatment was the result of a

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policy, practice, or custom promulgated by Defendants.

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn as to Defendants’

Motion for Summary Judgment (Doc. 25).

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(2)

Defendants’ Motion for Summary Judgment (Doc. 25) is granted, and the

action is terminated with prejudice. The Clerk of Court must enter judgment accordingly.
Dated this 30th day of April, 2018.

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