Frank Galvan v. Kenneth E Duffie

Filing 63

FINAL REPORT AND RECOMMENDATION issued by Magistrate Judge Patrick J. Walsh 54 (im)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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FRANK GALVAN,

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Plaintiff,
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v.
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KENNETH E. DUFFIE,
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Defendant.
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__________________________________)

Case No. ED CV 13-1492-BRO (PJW)
FINAL REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE

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This Final Report and Recommendation is submitted to the Hon.

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Beverly Reid O’Connell, pursuant to 28 U.S.C. § 636 and General Order

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05-07 of the United States District Court for the Central District of

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California.

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Defendant’s motion for summary judgment be denied.1
I.

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SUMMARY OF FACTS AND PROCEEDINGS

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For the reasons discussed below, it is recommended that

In January 2010, Plaintiff, a state prisoner at Ironwood State
Prison, went to see Defendant Dr. Kenneth E. Duffie, a dentist working

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This Final Report and Recommendation has been issued to
address arguments raised by Defendant Dr. Duffie in his Objections to
the original Report and Recommendation. (Doc. No. 62.) Because the
ultimate decision remains unchanged, the parties have not been given
an opportunity to file additional objections.

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at the prison.

(First Amended Complaint (“FAC”)2 at 5; Dr. Duffie

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Decl. at ¶ 3.)

Plaintiff had previously been told that one of his

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teeth was showing signs of decay and needed to be extracted.

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5.)

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(FAC at

Dr. Duffie examined Plaintiff’s tooth, his x-rays, and his dental

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records and determined that the tooth (tooth number 15) needed to be

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removed.

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the tooth removed.

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(Dr. Duffie Decl. at ¶ 3.)

Plaintiff consented to having

(Dr. Duffie Decl. at ¶ 3.)

As Dr. Duffie began pulling the tooth, however, he noticed that

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the adjacent tooth, number 16, began to move.

(Dr. Duffie Decl. at

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¶ 4.)

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number 15 was intertwined at the roots with tooth number 16 and that

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he would have to pull both teeth.

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FAC at 5-6.)

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nothing wrong with tooth number 16 and that he did not want it

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removed.

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and explained that, while the condition was not apparent from the x-

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rays, he believed that both teeth needed to be pulled.

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Duffie Decl. at ¶ 5.)

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his objections, Dr. Duffie removed both teeth.

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Duffie Decl. at ¶ 7.)

He then stopped the procedure and informed Plaintiff that tooth

(Dr. Duffie Decl. at ¶¶ 4, 5, 7;

Plaintiff protested, telling Dr. Duffie that there was

(FAC at 6.)

Dr. Duffie showed Plaintiff his file and x-rays

(FAC at 6; Dr.

Plaintiff disagreed and objected again.

Over

(FAC at 6-7; Dr.

At some point during this procedure, a dental

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Because the FAC is verified, the Court has relied on it in
formulating the facts. See Schroeder v. McDonald, 55 F.3d 454, 460
(9th Cir. 1995) (holding a verified complaint may be used as an
opposing affidavit under Fed. R. Civ. P. 56); McElyea v. Babbitt, 833
F.2d 196, 197-98 (9th Cir. 1987) (per curiam) (finding verified
complaint in a pro se civil rights action may constitute an opposing
affidavit for purposes of summary judgment where the complaint is
based on an inmate’s personal knowledge of admissible evidence and not
merely on the inmate’s belief).
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assistant told Plaintiff that she had never witnessed an extraction

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“where the teeth were pulled out like that” in her 26 years as a

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dental assistant.

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(FAC at 6.)

As a result of having both teeth pulled, Plaintiff’s face became

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swollen and he suffered a lot of pain.

(FAC at 7.)

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he saw another dentist, Dr. Martinez.

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Dr. Martinez if, in looking at the old x-rays, she could see any

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fusion or intertwining between the two teeth.

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him that she could not.

(FAC at 7.)

In February 2010,
Plaintiff asked

(FAC at 7.)

She told

(FAC at 7.)

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II.

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ANALYSIS

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Plaintiff brings this civil rights action under 42 U.S.C. § 1983

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against Dr. Duffie, alleging that he violated Plaintiff’s constitu-

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tional rights when he pulled the second tooth over Plaintiff’s

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objections.

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removal of the second tooth was medically necessary and that Dr.

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Duffie had a constitutional duty to provide necessary dental

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treatment.

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the motion is denied.

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A.

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Dr. Duffie has moved for summary judgment, arguing that

Plaintiff opposes the motion.

For the following reasons,

Standard of Review
Summary judgment is warranted upon a showing that there is no

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genuine dispute as to any material fact and the moving party is

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entitled to judgment as a matter of law.

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“genuine issue” exists if there is a sufficient evidentiary basis upon

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which a reasonable jury could find for the non-moving party.

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v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

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is “material” if it might affect the outcome of the suit under

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governing law.

Id. at 248.

Fed. R. Civ. P. 56(a).

Anderson

A factual dispute

The burden is on the moving party to
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A

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establish that there are no disputed material facts.

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Catrett, 477 U.S. 317, 323 (1986).

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B.

Celotex Corp. v.

Dr. Duffie is Not Entitled to Summary Judgment on Plaintiff’s

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Fourteenth Amendment Claim

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Dr. Duffie argues that he is entitled to summary judgment

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because removal of the second tooth was medically necessary and he had

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a constitutional duty to provide Plaintiff with necessary dental

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treatment, whether Plaintiff consented to it or not.

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Plaintiff opposes the motion, arguing that he had a constitutional

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right to refuse having the second tooth pulled.

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(Motion at 6-7.)

Plaintiff.

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The Court sides with

Except in unusual circumstances, a prisoner has a constitutional

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right to refuse unwanted medical care.

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Director, Missouri Dept. of Health, 497 U.S. 261, 278 (1990) (“The

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principle that a competent person has a constitutionally protected

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liberty interest in refusing unwanted medical treatment may be

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inferred from our prior decisions”); Benson v. Terhune, 304 F.3d 874,

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884 (9th Cir. 2002) (“The due process clause of the Fourteenth

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Amendment substantively protects a person’s rights to be free from

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unjustified intrusions to the body, to refuse unwanted medical

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treatment and to receive sufficient information to exercise these

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rights intelligently.”) (internal citations omitted).

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are exceptions to this rule for life and death situations or for

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medical conditions that could impact the health and well-being of

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other prisoners or prison staff, see, e.g., Washington v. Harper, 494

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U.S. 210, 222, 226 (1990), none of those exceptions applies here.

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See Cruzan by Cruzan v.

Though there

Plaintiff had a constitutional right to refuse having his tooth
pulled.

Id. at 221-22.

Dr. Duffie’s refusal to honor that right is
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actionable under § 1983.

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(9th Cir. 1974) (“Allegations that prison medical personnel performed

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major surgical procedures upon the body of an inmate, without his

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consent and over his known objections, that were not required to

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preserve his life or further a compelling interest of imprisonment or

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prison security, may [be sufficient to state a cognizable Fourteenth

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Amendment due process claim].”).

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Complaint establishing that that is what happened here is sufficient

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to overcome Dr. Duffie’s summary judgment motion.

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See Runnels v. Rosendale, 499 F.2d 733, 735

Dr. Duffie disagrees.

Plaintiff’s verified First Amended

Relying on Lyons v. Traquina, 2010 WL

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3069336 (E.D. Cal. Aug. 4, 2010), he argues, as the doctor did in that

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case, that he had a duty to provide necessary medical care to

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Plaintiff and that that is what he did.

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several reasons.

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not find it persuasive.

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about a surgical procedure that was performed on him when he was

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unconscious.

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form--though he later claimed that it had been altered--which

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authorized the defendant doctor to perform various procedures during

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surgery, including the procedure the doctor performed.

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that followed, the prisoner complained that the doctor should not have

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performed the procedure.

This argument is rejected for

First, Lyons is not controlling and the Court does
Lyons involved a prisoner who complained

Prior to the surgery, the prisoner had signed a consent

In the lawsuit

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As the court explained in Lyons, however, that case did not

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involve “a situation where a prisoner completely withholds consent and

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medical officials nonetheless force him to undergo treatment despite

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the prisoner’s objections.”

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Plaintiff was conscious when Dr. Duffie determined that both teeth

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needed to be pulled and he told Dr. Duffie that he did not want the

Id. at *10.

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That is what happened here.

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second tooth pulled.

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tooth anyway.

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Defendant’s failure to honor that right precludes summary judgment.

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Harper, 494 U.S. at 221-22.

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Dr. Duffie ignored that command and pulled the

Plaintiff had a constitutional right to say no and

Lyons is also inapt because, in that case, the defendant doctor

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supported his summary judgment motion with a declaration from another

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doctor who opined that the procedure that the defendant doctor had

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performed was medically necessary.

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his opinion that the extraction was necessary.

Here, Dr. Duffie has provided only
And that opinion is

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undermined by Plaintiff’s claim, albeit hearsay, that the dental

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assistant that assisted Dr. Duffie told Plaintiff at the time that the

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extraction was highly unusual.

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Martinez, told Plaintiff that the teeth were not intertwined, as Dr.

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Duffie claims.

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In addition, another dentist, Dr.

In his Objections, Dr. Duffie argues that the decision to remove

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both teeth was an exercise of his professional judgment and his

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judgment must be accepted as valid because there is no evidence that

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his decision to remove both teeth was a substantial departure from

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accepted dental practice or standards.

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Napoleon, 897 F.2d 103, 113 (3rd Cir. 1990), for the proposition that

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a prisoner may be compelled to accept treatment when prison officials,

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in the exercise of their professional judgment, deem it necessary to

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carry out valid medical or penological objectives.

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10-12.)

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in keeping its prisons safe for all inmates, and a constitutional duty

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to provide adequate medical treatment, that interest does not trump

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Plaintiff’s right to refuse unwanted dental treatment given the facts

This argument is rejected.

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He relies on White v.

(Doc. No. 62 at

While the State has an interest

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presented here.

Plaintiff’s life was not in danger nor did his

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condition threaten staff or inmates at the prison.

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III.

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RECOMMENDATION

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For these reasons, IT IS RECOMMENDED that the Court issue an

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Order (1) accepting this Final Report and Recommendation, and

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(2) denying Defendant Dr. Duffie’s motion for summary judgment.3

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DATED: August 15, 2017

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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S:\PJW\Cases-Civil Rights\GALVAN\Final R&R Defendant SJ motion.wpd

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In his Objections, Dr. Duffie requests that he be permitted to
bring a second summary judgment motion based on qualified immunity.
(Doc. No. 62 at 15.) That issue should be raised in a separate
motion, not in the objections.
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