Ruiz v. Arakaki

Filing 55

FINDINGS and RECOMMENDATIONS Regarding Defendants' 47 Motion for Summary Judgment signed by Magistrate Judge Stanley A. Boone on 1/7/2020. Referred to Judge Anthony W. Ishii. Objections to F&R due within Thirty (30) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGELIO MAY RUIZ,

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Plaintiff,

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v.
L. ARAKAKI, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATION
REGARDING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
[ECF No. 47]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants’ motion for summary judgment, filed September 4,

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Case No. 1:17-cv-01404-AWI-SAB (PC)

Plaintiff Rogelio May Ruiz is appearing pro se and in forma pauperis in this civil rights action

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2019.

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I.

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RELEVANT BACKGROUND

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This action is proceeding against Defendants L. Arakaki and F. Hanna for deliberate

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indifference to a serious dental need in violation of the Eighth Amendment.

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On November 1, 2018, Defendants filed an answer to the complaint.

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As previously stated, on September 4, 2019, Defendants filed the instant motion for summary

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judgment. Plaintiff filed an opposition on November 22, 2019, and Defendants filed a reply on

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December 2, 2019. Accordingly, Defendants’ motion is deemed submitted for review without oral

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argument. Local Rule 230(l).

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II.

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LEGAL STANDARD

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Any party may move for summary judgment, and the Court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v.

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U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed

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or undisputed, must be supported by (1) citing to particular parts of materials in the record, including

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but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials

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cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot

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produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted).

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The Court may consider other materials in the record not cited to by the parties, but it is not required

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to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031

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(9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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In judging the evidence at the summary judgment stage, the Court does not make credibility

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determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and

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citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party

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and determine whether a genuine issue of material fact precludes entry of judgment, Comite de

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Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d at 942 (quotation marks and

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citation omitted).

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III.

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DISCUSSION

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A.

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Plaintiff went to his dental appointment with Dr. Arakaki for a root canal. According to

Summary of Plaintiff’s Complaint

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Plaintiff, in July 2017, Dr. Arakaki was going to kill the nerves in some of Plaintiff’s teeth to save

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them from extraction. However, Dr. Arakaki did not complete the treatment for Plaintiff’s teeth

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because he requested that Plaintiff sign a form consenting to extraction because they were worn down.

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Plaintiff refused to sign the consent form and was therefore not provided any further dental treatment.

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Dr. Arakaki advised Plaintiff that supervising Dr. Hanna did not want to continue Plaintiff’s treatment.

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Plaintiff was left with a temporary root canal but the treatment was never completed.

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B.

Statement of Undisputed Facts

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1.

In early 2017, Plaintiff’s tooth #27 and #28 had severe attrition, apical abscess

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(inflammation of the tooth’s root), and occlusal bruxism (damage from grinding teeth) with severe

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occlusal wearing. (Declaration of L. Arakaki (“Arakaki Decl.”) ¶ 5, Ex. A; ECF No. 47-4; Declaration

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of F. Hanna (“Hanna Decl.”) ¶ 5, Ex. A; ECF No. 47-5.)
2.

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extraction of tooth #27 and #28. (Id.)
3.

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4.

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Plaintiff was transferred to Corcoran on May 10, 0217. (Arakaki Decl. ¶ 6, Ex. B;

Hanna Decl. ¶ 6, Ex. B.)
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Dr. Arakaki saw Plaintiff on June 1, 2017. (Arakaki Decl. ¶ 7, Ex. A; Hanna Decl. ¶ 7,

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In early 2017, Plaintiff refused SVSP dentists’ recommended extraction of tooth #27

and #28 multiple times. (Id.)

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In early 2017, non-party dentists at Salinas Valley State Prison (SVSP) recommended

Plaintiff complained of severe tooth pain on June 1, 2017. (Arakaki Decl. ¶ 7, Ex. A;

Ex. A.)

Hanna Decl. ¶ 7, Ex. A.)
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On June 1, 2017, Dr. Arakaki noted Plaintiff’s irreversible pulpitis in tooth #25 and #27

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and recommended a root canal for those teeth (cleaning and removal of the nerve/pulp inside of the

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tooth). (Arakaki Decl. ¶ 7, Ex. A; Hanna Decl. ¶ 7, Ex. A.)

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8.

On June 12, 2017, Plaintiff was seen by a non-party dentist. (Arakaki Decl. ¶ 8, Ex. A;

Hanna Decl. ¶ 8, Ex. A.)
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On June 12, 2017, Plaintiff was scheduled for a root canal of tooth #25, however,

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because Plaintiff’s biannual comprehensive exam had a compliance date of June 22, 2017, the root

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canal was rescheduled and Plaintiff received a comprehensive exam and x-rays.

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10.

On June 26, 2017, non-party Dr. Buenafe performed the root canal on tooth #25.
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(Arakaki Decl. ¶ 9, Ex. A; Hanna Decl. ¶ 9, Ex. A.)
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Per Division of Health Care Services (DHCS) policy, root canals of the upper and

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lower six anterior teeth (which includes #25 and 27) are only performed when: (1) the retention of the

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tooth is necessary to maintain the integrity of the dentition; (2) the tooth has adequate periodontal

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support and a good prognosis for long-term retention and restorability; (3) the tooth is restorable using

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CDCR approved methods and materials and does not require extensive restoration including either a

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pin or post retained core build up; and (4) there is adequate posterior occlusion, either from natural

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dentition or a dental prosthesis, to provide protection against traumatic occlusal forces. (Hanna Decl.

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¶ 11, Ex. C.)

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Per DHCS policy, root canals of the posterior teeth (which includes #28) are only

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performed when: (1) the retention of the tooth is necessary to maintain the integrity of the dentition;

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(2) the tooth has adequate periodontal support and a good prognosis for long-term retention and

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restorability; (3) the tooth is restorable using CDCR approved methods and materials and does not

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require extensive restoration including either a pin or post retained core build up; (4) there is adequate

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posterior occlusion, either from natural dentition or a dental prosthesis, to provide protection against

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traumatic occlusal forces; (5) the tooth in question is vital to the patient’s masticatory ability; and (6)

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the tooth in question is essential as an abutment for an existing removable cast partial denture or is

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necessary as an abutment on a proposed removable cast partial denture for that arch. (Hanna Decl. ¶

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11, Ex. C.)

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13.

On July 6, 2017, following Plaintiff’s comprehensive exam and x-rays, Supervising

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Dentist Dr. Hanna recommended extraction of tooth #27 and #28. (Arakaki ¶ 10, Ex. A; Hanna Decl.

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¶ 12, Ex. A.)

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Based on Dr. Hanna’s education, training, and experience, extraction of tooth #27 was

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clinically indicated because the tooth was too badly damaged and had a very poor prognosis for long-

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term retention and restorability, even if a root canal was performed. (Hanna Decl. ¶ 12, Ex. C.)

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Based on Dr. Hanna’s education, training, and experience, extraction of tooth #28 was

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clinically indicated because the tooth was badly damaged and root canals of that tooth are not

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medically necessary and excluded by policy because that tooth is not necessary to maintain the

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integrity of the detention or vital to mastication (chewing). (Hanna Decl. ¶ 12, Ex. C.)

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The plan on July 6, 2017, was to provide Plaintiff a partial denture once extraction was

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completed (the partial denture would also cover tooth #26, which was extracted at SVSP). (Arakaki

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Decl. ¶ 10; Hanna Decl. ¶ 12.)

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On July 6, 2017, Plaintiff submitted appeal log number COR-HC-17062354, appealing

the decision to extract tooth #27 and #28, and requesting a root canal instead.
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Doctors Hanna and Arakaki provided the first level response to appeal log number

COR-HC-17062354 on August 2, 2017. (Arakaki Decl. ¶ 11, Ex. C; Hanna Decl. ¶ 13, Ex. D.)
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Doctors Hanna and Arakaki partially granted Plaintiff’s appeal log number COR-HC-

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17062354 and submitted his request for a root canal of tooth #27 and #28 to the Dental Authorization

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Review (DAR) Committee for a final decision. (Arakaki Decl. ¶ 11, Ex. C; Hanna Decl. ¶ 13, Ex. D.)

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The DAR committee reviews treatment recommendations for special dental care needs

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and evaluates requests for deviations from treatment policy, otherwise excluded dental services,

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medically necessary treatment that requires a contract specialist to provide treatment at the local

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institution, and medically necessary treatments or consultations that cannot be accomplished at the

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local institution. (Arakaki Decl. ¶ 12; Hanna Decl. ¶ 14.)

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On July 12, 2017, Plaintiff submitted appeal log number COR-HC-17062555,

requesting the removal and replacement of a filling in tooth #25. (Hanna Decl. ¶ 15, Ex. E.)

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Dr. Arakaki saw Plaintiff on August 22, 2017. (Arakaki Decl. ¶ 13; Hanna Decl. ¶ 16.)

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Dr. Hanna concurred with Dr. Arakaki’s August 22, 2017, treatment recommendation.

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(Hanna Decl. ¶ 16.)
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On August 23, 2017, the DAR committee reviewed Plaintiff’s case and determined that

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a root canal was not an appropriate form of treatment for Plaintiff’s tooth # 27 and #28, and that the

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appropriate treatment was extraction. (Arakaki Decl. ¶ 14, Ex. A; Hanna Decl. ¶ 17, Ex. A.)

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On September 12, 2017, Dr. Arakaki saw Plaintiff and he refused the recommended

extraction of tooth #25. (Arakaki Decl. ¶ 15, Ex. A; Hanna Decl. ¶ 18, Ex. A.)
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26.

On September 14, 2017, non-party Dr. Buenafe and Dr. Hanna provided the first level

response to appeal log number COR-HC-17062555. (Hanna Decl. ¶ 15, Ex. E.)
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Doctors Buenafe and Hanna partially granted Plaintiff’s appeal log number COR-HC-

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17062555 and explained that there was no clinical reason to replace the filling in tooth #25 because

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the tooth required extraction. (Hanna Decl. ¶ 19, Ex. E.)

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On September 22, 2017, Plaintiff saw non-party Dr. Buenafe (who had previously

performed the root canal on tooth #25). (Arakaki Decl. ¶ 16, Ex. A; Hanna Decl. ¶ 20, Ex. A.)
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On September 22, 2017, Dr. Buenafe noted that Plaintiff was still experiencing pain in

tooth #25, but was refusing recommended extraction of that tooth, in addition to tooth #27 and #28.
(Arakaki Decl. ¶ 16, Ex. A; Hanna Decl. ¶ 20, Ex. A.)
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On October 5, 2017, Plaintiff was transferred to KVSP. (Arakaki Decl. ¶ 17, Ex. B;

Hanna Decl. ¶ 21, Ex. B.)
Analysis of Defendants’ Motion

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C.

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Plaintiff contends that non-party dentists extracted tooth #26 because it was “worn down.”

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However, Plaintiff did not want his other “worn down” teeth extracted (#25, 27, 28), and he refused to

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consent to the extraction that was offered by Defendants Drs. Arakaki and Hanna. Plaintiff contends

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that Dr. Hanna advised Dr. Arakaki to not complete Plaintiff’s root canal treatment.

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Defendants argue Plaintiff cannot meet either the objective or subjective component necessary

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to establish deliberate indifference against them, and even if their dental care violated the Constitution,

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they are entitled to qualified immunity.

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Plaintiff contends that he was not experiencing increased pain in tooth #25, and although his

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teeth were infected, extraction of tooth #25, #27, and #28 was unnecessary because his pain in tooth

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#25 went away after he received a new filing, and his teeth are currently in good state. (Pl. Opp’n at

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pp. 2-3, ECF No. 52.)

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A prisoner’s claim of inadequate medical care does not constitute cruel and unusual

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punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of

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“deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference
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requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a

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prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction

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of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at

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1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of

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and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837

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(1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d

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1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown

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where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need”

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and the indifference caused harm. Jett, 439 F.3d at 1096.

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Negligence or medical malpractice do not rise to the level of deliberate indifference.

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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-

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106). “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition

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does not state a valid claim of medical mistreatment under the Eighth Amendment.

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malpractice does not become a constitutional violation merely because the victim is a prisoner.”

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Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995).

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Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See

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Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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disagreement with diagnosis or treatment does not support a claim of deliberate indifference. Sanchez

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v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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Medical

Additionally, a prisoner’s mere

Having carefully reviewed the evidence, the Court finds that no reasonable jury could find that

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Defendants’ responses and recommendations relating to Plaintiff’s dental needs amounted to

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deliberate indifference. “Per DHCS policy, root canals of the posterior teeth which includes #28) are

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only performed when: (1) the retention of the tooth is necessary to maintain the integrity of the

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dentition; (2) the tooth has adequate periodontal support and a good prognosis for long-term retention

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and restorability; (3) the tooth is restorable using CDCR approved methods and materials and does not

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require extensive restoration including either a pin or post retained core build up; (4) there is adequate

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posterior occlusion, either from natural dentition or a dental prosthesis, to prove protection against

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traumatic occlusal forces; (5) the tooth in question is vital to the patient’s masticatory ability; and (6)
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the tooth in question is essential as a abutment for an existing removable cast partial denture or is

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necessary as a abutment on a proposed removable cast partial denture for that arch. (Hanna Decl. ¶

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The undisputed evidence demonstrates that multiple non-party dentists at SVSP recommended

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extraction of tooth #27 and #28. After conducting a comprehensive exam and x-rays, Dr. Hanna

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recommended extraction of tooth #27 as clinically indicated based on his education, training and

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experience, because the tooth was too badly damaged and had a very poor prognosis for long-term

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retention and restorability, even if a root canal were performed. Also, after an extensive examine and

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x-rays, Dr. Hanna recommended extraction of tooth #28 as clinically based on his education, training

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and experience, because the tooth was badly damaged and root canals of that tooth are not medically

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necessary and excluded by policy because that tooth is not necessary to maintain the integrity of the

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dentition or vital to mastication (chewing). Plaintiff appealed the decisions to extract tooth #27 and

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#28 and requested a root canal, and Drs. Hanna and Arakaki submitted the request to the DAR

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Committee, which determined that a root canal was not an appropriate treatment, and that the teeth

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required extraction.

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Although Dr. Arakaki recommended extraction of tooth #25, he did so after Plaintiff’s

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complaints of pain following the root canal. Plaintiff contends that he did not have pain in this tooth

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and never complained to Dr. Arakaki of such pain. Plaintiff contends that he was not experiencing

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increased pain in tooth #25 and, in fact, had very little pain; however, Plaintiff’s dental records reflect

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that he informed Dr. Arakaki through a translator that his “pain got worse” after his root canal and

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Plaintiff also told non-party Dr. Buenafe that he had “a lot of pain” in the lower anterior where tooth

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#25 is located. (Arakaki Decl., Ex. A, Bates 13, 15.) Because Plaintiff is not a native English speaker,

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it is possible that there was a misunderstanding between Plaintiff and doctors Arakaki and Buenafe

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during their respective encounters. However, it is undisputed that Dr. Arakaki believed that Plaintiff

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was complaining of pain and based on such complaint he recommended extraction. Plaintiff has failed

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to provide evidence that Dr. Arakaki acted out of a non-medical motive or for reasons unrelated to his

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dental conditions. In addition, Plaintiff has failed to present evidence to demonstrate that the

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recommendation of Drs. Arakaki and Hanna were medically unacceptable based on the information
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available to them at that time, and there is no genuine issue of material fact. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996) (Plaintiff must show that the course of treatment was medically

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unacceptable under the circumstances); see also Powell v. Marlais, Case No. 14-cv-05308-JST, 2016

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WL 5462443, at *2-4, *13 (N.D. Cal. Sept. 29, 2016) (granting summary judgment for prison dentist

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against prison who requested antibiotics, pain medications and a root canal to address dental pain;

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prisoner had refused the offered care of extraction of two teeth, removal of four-tooth bridge, and

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provision of partial denture from prison dentist who believed there was no bacterial infection and that

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a root canal would not work); Pickett v. Repasky, Case No. C-11-4367 TEH (PR), 2012 WL 1231811,

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at 2 (N.D. Cal. Apr. 12, 2012) (no deliberate indifference where defendant failed to provide plaintiff

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his preferred treatment and offered an extraction or a root canal instead); Kunkel v. Dill, Case No.

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1:09-cv-00686-LJO-BAM PC, 2012 WL 761247, at *24 (E.D. Cal. Mar. 7, 2012) (no deliberate

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indifference where defendant recommended extraction and did not provide plaintiff’s desired

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treatment), report and recommendation adopted, 2012 WL 1856499 (E.D. Cal. May 21, 2012);

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Rosenberg v. Lappin, Case No. 09-1722-PA (SH), 2010 WL 4668317, at *7-8 (no deliberate

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indifference where plaintiff and defendant disagreed on whether to extract or prescribe antibiotics to

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treat an abscess in a tooth, and any pain plaintiff suffered during the period in which he refused

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extraction was his own doing), report and recommendation adopted, 2010 WL (C.D. Cal. Nov. 8,

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2010). Furthermore, even if the treatment recommendations by Drs. Arakaki and Hanna were

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mistaken in hindsight, “inadequate treatment due to malpractice, or even negligence, does not amount

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to a constitutional violation.” Estelle v. Gamble, 429 U.S. at 106. Moreover, a difference of opinion

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between Plaintiff and Drs. Arakaki and Hanna (or between medical doctors) as to the appropriate

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course of treatment, is insufficient as a matter of law to constitute deliberate indifference. Snow v.

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McDaniel, 691 F.3d 978, 987 (9th Cir. 2012) (“[a] difference of opinion between a physician and the

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prisoner—or between medical professionals—concerning what medical care is appropriate does not

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amount to deliberate indifference.”). Accordingly, Defendants’ motion for summary judgment should

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be granted.

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IV.

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RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion for

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summary judgment filed on September 4, 2019, be granted.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with this Findings and Recommendation, the parties may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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January 7, 2020
UNITED STATES MAGISTRATE JUDGE

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