Lopez v. Krieg, et al.

Filing 110

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/23/2017 RECOMMENDING defendants' 94 motion for summary judgment be granted; plaintiff's 95 motion for summary judgment be denied; judgment be entered for defendants; and the Clerk be directed to close this case. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD LOPEZ,

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No. 2:13-cv-1176 KJM AC P

Plaintiff,

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v.

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J. KRIEG, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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I.

Introduction

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Plaintiff is a state prisoner currently incarcerated at the Correctional Training Facility

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(CTF) in Soledad, under the authority of the California Department of Corrections and

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Rehabilitation (CDCR). Plaintiff proceeds pro se and in forma pauperis with this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This case proceeds on plaintiff’s First Amended

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Complaint (FAC), on claims that defendants Krieg and McDow were deliberately indifferent to

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plaintiff’s serious dental needs in violation of the Eighth Amendment when plaintiff was

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incarcerated at the Sierra Conservation Center (SCC) in Jamestown. See ECF No. 70. Presently

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pending are the parties’ cross-motions for summary judgment. See ECF Nos. 94, 95.

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This action is referred to the undersigned United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, this court recommends

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that defendants’ motion for summary judgment be granted, and plaintiff’s motion for summary

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judgment be denied.
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II.

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Plaintiff filed his initial complaint on June 12, 2013, ECF No. 1, and the operative FAC

Background

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on October 27, 2014, against defendants J. Krieg, T. McDow, W. Freichter, and L.D. Zamora, see

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ECF No. 70. Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure

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12(b)(6), which was granted in part, resulting in the dismissal of defendants Freichter and

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Zamora. See ECF Nos. 76, 79. Remaining defendants Krieg and McDow filed their answer to

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the FAC on August 13, 2015. See ECF No. 84. Discovery proceeded until January 15, 2016.

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See ECF No. 82. The parties filed their instant motions in April 2016, see ECF Nos. 94, 96,

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which were timely opposed and are now fully briefed.

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III.

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Legal Standards
A.

Legal Standards for Motions for Summary Judgment

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Summary judgment is appropriate when the moving party “shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of

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proving the absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144

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v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010)

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(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish

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this by “citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admission, interrogatory answers, or other materials” or by showing

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that such materials “do not establish the absence or presence of a genuine dispute, or that the

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adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56

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(c)(1)(A), (B).

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When the non-moving party bears the burden of proof at trial, “the moving party need

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only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle

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Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Indeed, summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element
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essential to that party’s case, and on which that party will bear the burden of proof at trial. See

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Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the

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nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a

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circumstance, summary judgment should be granted, “so long as whatever is before the district

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court demonstrates that the standard for entry of summary judgment ... is satisfied.” Id. at 323.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials

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of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or

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admissible discovery material, in support of its contention that the dispute exists. See Fed. R.

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Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. Moreover, “[a] [p]laintiff’s verified complaint

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may be considered as an affidavit in opposition to summary judgment if it is based on personal

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knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122,

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1132 n.14 (9th Cir. 2000) (en banc).1

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The opposing party must demonstrate that the fact in contention is material, i.e., a fact that

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might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809

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F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers,

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Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In addition, in considering a dispositive motion or opposition thereto in the case of a pro se
plaintiff, the court does not require formal authentication of the exhibits attached to plaintiff’s
verified complaint or opposition. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)
(evidence which could be made admissible at trial may be considered on summary judgment);
see also Aholelei v. Hawaii Dept. of Public Safety, 220 Fed. Appx. 670, 672 (9th Cir. 2007)
(district court abused its discretion in not considering plaintiff’s evidence at summary judgment,
“which consisted primarily of litigation and administrative documents involving another prison
and letters from other prisoners” which evidence could be made admissible at trial through the
other inmates’ testimony at trial); see Ninth Circuit Rule 36-3 (unpublished Ninth Circuit
decisions may be cited not for precedent but to indicate how the Court of Appeals may apply
existing precedent).
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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U .S. at 587 (citations omitted).

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In evaluating the evidence to determine whether there is a genuine issue of fact,” the court

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draws “all reasonable inferences supported by the evidence in favor of the non-moving party.”

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Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam).

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It is the opposing party’s obligation to produce a factual predicate from which the inference may

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be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985),

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aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

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party “must do more than simply show that there is some metaphysical doubt as to the material

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facts. … Where the record taken as a whole could not lead a rational trier of fact to find for the

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nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation

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omitted).

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In applying these rules, district courts must “construe liberally motion papers and

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pleadings filed by pro se inmates and … avoid applying summary judgment rules strictly.”

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Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, “[if] a party fails to properly

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support an assertion of fact or fails to properly address another party’s assertion of fact, as

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required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion

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. . . .” Fed. R. Civ. P. 56(e)(2).

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B.

Legal Standards for Deliberate Indifference to Serious Medical Needs

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“[D]eliberate indifference to serious medical needs of prisoners constitutes the

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unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment. This is true

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whether the indifference is manifested by prison doctors in their response to the prisoner’s needs

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or by prison guards in intentionally denying or delaying access to medical care or intentionally

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interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)
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(internal citations, punctuation and quotation marks omitted). “Prison officials are deliberately

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

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with medical treatment.’” Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (quoting

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Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)).

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“In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, the

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plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s

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condition could result in further significant injury or the unnecessary and wanton infliction of

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pain. Second, the plaintiff must show the defendant’s response to the need was deliberately

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indifferent. This second prong ... is satisfied by showing (a) a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett v.

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations, punctuation and quotation marks

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omitted); accord, Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Lemire v. CDCR,

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726 F.3d 1062, 1081 (9th Cir. 2013).

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To state a claim for deliberate indifference to serious medical needs, a prisoner must

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allege that a prison official “kn[ew] of and disregard[ed] an excessive risk to inmate health or

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safety; the official must both be aware of the facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,

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511 U.S. 825, 837 (1994). Because “only the unnecessary and wanton infliction of pain

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implicates the Eighth Amendment,” evidence must exist to show the defendant acted with a

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“sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal

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quotation marks, emphasis and citations omitted).

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Whether a defendant had requisite knowledge of a substantial risk of harm is a question of

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fact. “[A] factfinder may conclude that a prison official knew of a substantial risk from the very

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fact that the risk was obvious. The inference of knowledge from an obvious risk has been

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described by the Supreme Court as a rebuttable presumption, and thus prison officials bear the

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burden of proving ignorance of an obvious risk. . . . [D]efendants cannot escape liability by virtue

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of their having turned a blind eye to facts or inferences strongly suspected to be true . . . .”

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Coleman v. Wilson, 912 F. Supp. 1282, 1316 (E.D. Cal. 1995) (citing Farmer, 511 U.S. at 842-

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43) (internal quotation marks omitted).

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When the risk is not obvious, the requisite knowledge may still be inferred by evidence

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showing that the defendant refused to verify underlying facts or declined to confirm inferences

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that he strongly suspected to be true. Farmer, 511 U.S. at 842. On the other hand, prisons

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officials may avoid liability by demonstrating “that they did not know of the underlying facts

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indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or

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that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts

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gave rise was insubstantial or nonexistent.” Id. at 844. Thus, liability may be avoided by

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presenting evidence that the defendant lacked knowledge of the risk and/or that his response was

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reasonable in light of all the circumstances. Id. at 844-45; see also Wilson, 501 U.S. at 298;

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Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010).

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IV.

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Unless otherwise noted, the following facts are undisputed by the parties2 or as

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Facts

determined by the court based on a thorough review of the record.
$ On July 21, 2010, while incarcerated at the Correctional Training Facility (CTF),

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plaintiff filed a Health Care Appeal, Log No. CTF-14-10-12419, seeking approval for partial

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dentures. His appeal stated in full, FAC at 12:

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Describe Problem: I would like to have parcials (sic) because I
have been having problems when chewing my food. My gums get
bruised and cause pain. Under Section 3350[b](4),3 I should be
given this dental treatment (replacement) because it’s a medical

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These facts are taken from plaintiff’s verified First Amended Complaint (FAC), ECF No. 70,
and attached exhibits; Defendants’ Statement of Undisputed Material Facts (DUF), ECF No. 943, and supporting declarations; Plaintiff’s Deposition Transcript, and defendants’ supporting
declaration, ECF No. 97; Plaintiff’s Opposition to Witness Statements, ECF No. 101, and
supporting exhibits; CDCR’s pertinent regulations and health services guidelines.
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Cal. Code Regs. tit. 15, § 3350(a) provides in part that CDCR “shall only provide medical
services for inmates, which are based on medical necessity and supported by outcome data as
effective medical care.” “Medically Necessary means health care services that are determined by
the attending physician to be reasonable and necessary to protect life, prevent significant illness
or disability, or alleviate severe pain, and are supported by health outcome data as being effective
medical care” Id., §3350(b)(3). “Severe pain means a degree of discomfort that significantly
disables the patient from reasonable independent function.” Id., §3350(b)(4).
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problem as well. Also because I’m a lifer and have not the ability
to seek or purchase dental services else where.

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Action Requested: That I be given parcial (sic) because I am
unable to chew food properly and many foods, fruits cause cuts and
bruises which irritate and are painful.

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$ On August 26, 2010, plaintiff’s appeal was partially granted on First Level Review by

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CTF staff dentist Dr. Andrew Wise, and approved by the supervising dentist (name illegible) on

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August 31, 2010. FAC at 13-4; Krieg Decl., Ex. B. The appeal response provided in pertinent

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part, id.:

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Appeal Response: You were interviewed on 8/26/2010 by Dr. Wise
at [CTF] North Dental Clinic. Your treatment plan consists of four
quadrants of Scaling/Root Planing before partial dentures can be
fabricated. Two quadrants were completed on July 16, 2010. You
will be ducated for the remaining quadrants according to your
dental priority code (DPC) of two (2).4 Your request for partial
dentures is partially granted

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Appeal Decision: Your First Level appeal has been PARTIALLY
GRANTED in accordance with the Dental Policy and Procedures.
If you are dissatisfied with this decision, you may appeal to the
Second Formal Level . . . .

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Plaintiff did not further pursue this appeal.

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A few months later, plaintiff was transferred to the Sierra Conservation Center (SCC)

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in Jamestown.

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$ On October 7, 2011, plaintiff submitted Health Care Appeal Log No. SCCHC-

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11010151, pursuant to which he requested that the decision on his CTF appeal, in Log No. CTF-

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14-10-12419, “be honored as binding authority” at SCC. FAC at 5, see also id. at 5-11; Krieg

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CDCR’s Dental Priority Classification (DPC) system requires care within specified periods, as
follows, see California Correctional Health Care Services (CCHCS) Division, Dental Services,
Dental Priority Classification 5.4-3 (Aug. 2010):
Emergency Care (acute care, to be provided immediately);
DPC 1 (urgent care, to be provided within 1 day (DPC 1A),
30 days (DPC 1B), or 60 days (DPC 1C));
DPC 2 (interceptive care, to be provided within 120 days);
DPC 3 (routine rehabilitative care, to be provided within one year);
DPC 4 (no dental care needed); and
DPC 5 (special needs care).
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Decl., Ex. A. Plaintiff explained in part, id.:

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On or about 9-29-11, I went for teeth cleaning. Once finished I
mentioned to the SCC Dentist that earlier in the week I left a copy
of a 602, which was granted at CTF North Facility Soledad for
Partials. He [Dr. Lor]5 then did state that his supervisor had told
him that the 602 wasn’t accepted here at this institution; therefore
the dental work granted will not be carried out. The denial of this
granted appeal has and continues to prolong pain and suffering. . . .

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On October 17, 2011, defendant Supervising Registered Dental Assistant (SRDA)

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Krieg interviewed plaintiff regarding this appeal. FAC at 16-17; Krieg Decl., Ex. C. Defendant

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Krieg avers as follows concerning her interview with plaintiff and her response, Krieg Decl. ¶¶ 3-

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7:

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3. On October 17, 2011, I interviewed Mr. Lopez regarding his
October 7, 2011 grievance. I explained to him that under California
Department of Corrections and Rehabilitation (CDCR) policies and
procedures, an inmate who had eight or more occluding posterior
teeth did not qualify for dentures, and that since he had nine
occluding posterior teeth, he did not qualify. The foregoing
explanation was memorialized in the first-level response to the
grievance dated November 7, 2011. [See Krieg Decl., Ex C (First
Level Appeal Response).]

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4. In connection with my October 17, 2011 interview, I reviewed
Mr. Lopez’s dental records, including records from his September
29, 2011 visit, the most recent dental exam by a treating dentist
before the interview. Dr. Lor was Mr. Lopez’s attending dentist on
that date. The September 29, 2011 dental record indicated that Dr.
Lor completed Mr. Lopez’s dental treatment and he gave Mr. Lopez
a Dental Priority Code 4. Dental Priority Code 4 means that no
further dental care is needed. The medical record for this
appointment did not indicate that Dr. Lor recommended a special
dental prosthesis, or that Dr. Lor pursued a request for an
exemption to the Dental Authorization Review Committee. [See
Krieg Decl., Ex D (Dr. Lor’s notes of plaintiff’s Sept. 29, 2011
treatment).]

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5. I had no basis to recommend that Mr. Lopez receive an
exemption to the CDCR dental policy that disallowed dentures to
inmates with eight or more posterior teeth in occlusion because his
attending/diagnosing dentist neither prescribed the treatment as
clinically necessary, nor did he submit a request for an exemption
to the Denial Authorization Review Committee, and Mr. Lopez’s
then-current dental records did not otherwise reflect entitlement to
an exemption. I was not Mr. Lopez’s attending/diagnosing dentist.
I relied upon Dr. Lor’s assessment. Additionally, as a Supervising

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The dentist who treated plaintiff on September 29, 2011 was Dr. S. Lor. See Krieg Decl., Ex. D
(Dr. Lor’s Sept. 29, 2011 treatment notes).
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Registered Dental Assistant, I did not have the authority to grant an
exemption.

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6. I prepared the draft first-level response to Mr. Lopez’s grievance
and submitted it to Dr. McDow, the Supervising Dentist, for review
and approval on or around November 7, 2011.

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7. I did not intend to cause Mr. Lopez harm. I did not believe he
qualified for dentures under CDRC policy because he had nine
occluding posterior teeth. Additionally, his SCC dental records did
not indicate that his most recent attending/diagnosing dentist
recommended an exemption to the dental policy, which is required
for an inmate to obtain an exemption. I had no reason to believe
that Dr. Lor had not adequately and professionally exercised his
medical judgment or that he improperly withheld a
recommendation for an exemption.

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$ On November 7, 2011, defendant Supervising Dentist (SD) Dr. McDow reviewed and

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approved defendant Krieg’s First Level Response to plaintiff’s grievance. FAC at 16-17; Krieg

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Decl., Ex. C. Defendant McDow initially noted, “SRDA Krieg explained that based on policies

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and procedures, an inmate does not qualify for prosthetics if all the anterior teeth were present or

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had eight or more occluding teeth. She stated you have nine occluding posterior teeth at this time

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and did not qualify for prosthetics.” FAC at 17. Defendant McDow avers that he made the

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following assessment, McDow Decl. ¶¶ 2-7:

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2. On or around November 7, 2011, I reviewed and approved the
first-level response to Mr. Lopez’s grievance, Log No. SCCHC
11010151. In this grievance, Mr. Lopez requested that SCC honor
a more that one-year old vague partial grant of dentures from
another institution. I could not grant Mr. Lopez’s request simply
because he believed that another institution had granted him
dentures. Rather, I could grant the request only if Mr. Lopez
qualified for dentures under CDCR policy.

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3. When I reviewed and approved the first-level response, it was
my understanding that Mr. Lopez’s dental records indicated that
Mr. Lopez had nine occluding posterior teeth. Thus, under CDCR
policy, Mr. Lopez did not qualify for dentures unless his
attending/diagnosing dentist recommended them.

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4. Dr. Lor was Mr. Lopez’s attending/diagnosing dentist on
September 29, 2011, the last time that Mr. Lopez had been seen by
a dentist prior to November 7, 2011.

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5. Mr. Lopez’s SCC dental records did not indicate a special need
for dentures. This is evidenced by Dr. Lor giving Mr. Lopez a
Dental Priority Code of 4 on September 29, 2011. A Dental Priority
Code of 4 means no further dental care is needed.
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6. When I signed the first-level response, I had no basis to grant an
exemption to the [CDCR] dental policy that disallowed dentures to
inmates with eight or more posterior teeth in occlusion because Mr.
Lopez’s attending/diagnosing dentist, Dr. Lor, had not prescribed
the treatment as clinically necessary or submitted a request for an
exemption to the Dental Authorization Review Committee, and Mr.
Lopez’s then-current dental records did not otherwise reflect
entitlement to an exemption.
I was not Mr. Lopez’s
attending/diagnosing dentist. I relied upon Dr. Lor’s assessment.

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7. I did not deny Mr. Lopez’s request for dentures to cause him
harm. I denied Mr. Lopez’s request because he did not qualify for
dentures under CDRC policy, nor did his records indicate that his
attending/diagnosing dentist recommended an exemption to the
dental policy, which is required for an inmate to obtain an
exemption. I had no reason to believe that Dr. Lor did not
adequately and professionally exercise medical judgment or that he
improperly withheld his recommendation for an exemption.

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Plaintiff’s appeal was denied at the Second Level on January 11, 2012, by former

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defendant W. Freichter, Health Program Manager (HPM) III, who agreed with defendant

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McDow’s assessment that plaintiff did “not qualify for a partial/denture as all of your anterior

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teeth are present and you have more than seven occluding posterior teeth.” FAC at 19. The

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appeal was denied at the Third Level on April 13, 2012, by former defendant L.D. Zamora,

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CCHCS Chief, who opined, FAC at 20-1:

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Your appeal file and document obtained from your Unit Health
Record (UHR) were reviewed by licensed clinical staff and
revealed the following:

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• You have misinterpreted the First Level Response from CTF. In
being partially granted, CTF meant you would receive all
preprosthetic services prior to a final evaluation of the need for
prosthetics;

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• The comprehensive dental exam at SCC is clear that you do not
have the medical necessity for dental prostheses.

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The Inmate Dental Services Program Policies and Procedures,
Chapter 2.6, states in part, “A dental prosthesis shall be constructed
only when an inmate-patient is edentulous, is missing an anterior
tooth, or has seven or fewer poster teeth in occlusion.”

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After review, there is no compelling evidence that warrant
interventions at the DLR as your dental condition has been
evaluated by licensed clinical staff and you are receiving treatment
deemed medically necessary.

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$ Plaintiff filed his initial complaint in this action on June 12, 2013, while still
incarcerated at SCC. See ECF No. 1.
$ In December 2013, plaintiff was transferred back to CTF, where he had received the

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partial grant of his initial appeal. Pltf. Depo. at 22:10, 23:13-24:3, 43:24-44:5.

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$ Plaintiff filed the operative FAC on October 27, 2014. ECF No. 70.

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$ In April 2016, Dr. Uy, CTF Supervising Dentist since 2014, submitted a declaration

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reflecting his review of plaintiff’s dental records, and conclusion that, since plaintiff’s return to

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CTF, there is no basis for recommending that he be accorded an exemption to CDCR’s policy

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regarding dentures. Dr. Uy stated and opined as follows:

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2. Mr. Lopez’s dental records at CTF reflect the following:
a. Mr. Lopez saw Dr. C. Nguyen, a dentist, on June 20,
2014, about receiving partial dentures, and Dr. Nguyen
advised him that he did not qualify for partial dentures. [See
Pltf. Ex. C, ECF No. 101 at 35-7, 39.]

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b. Mr. Lopez saw Dr. Nguyen again on August 28, 2014,
for a comprehensive exam. The records do not reflect that a
recommendation for partial dentures was contemplated by
the dentist on this date of service. [See Pltf. Ex. C, ECF No.
101 at 40.]

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c. On December 26, 2014, Dr. J. Chang, a dentist, treated
Mr. Lopez for a filling. The records do not reflect that a
recommendation for partial dentures was contemplated by
the dentist on this date of service. [See Pltf. Ex. C, ECF No.
101 at 38.]

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d. Mr. Lopez was treated on February 5, 2015 by Dr.
Babienco, a dentist. The treatment plan that had been
recommended on August 28, 2014, which did not include
dentures, was completed. The records do not reflect that a
recommendation for partial dentures was contemplated by
the dentist on this date of service. [See Pltf. Ex. C, ECF No.
101 at 31, 38.]

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e. Mr. Lopez’s last appointment with a dentist as of the date
of this declaration occurred on February 11, 2016, when he
saw Dr. E. Razavi for a comprehensive exam. The records
do not reflect that a recommendation for partial dentures
was contemplated by the dentist on this date of service.
[See Pltf. Ex. C, ECF No. 101 at 32.]
3. On April 6, 2016, I reviewed x-rays (panoramic and full mouth)
that were taken of Mr. Lopez on February 11, 2016. As of the date
of the x-rays, Mr. Lopez had at least nine posterior teeth in
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occlusion. Since his arrival back at CTF, there is nothing in Mr.
Lopez’s dental records that indicate Mr. Lopez should have an
exemption to CDCR’s policy regarding dentures, there is no
indication any dentist ever recommended or even contemplated
such an exemption, and [I] have no basis for recommending an
exemption.

2
3
4
5

Uy Decl. ¶¶ 2-3.
$ It is the policy of CDCR to provide “limited dental prosthodontic services to inmate-

6
7

patients in its custody.” See CDCR’s Inmate Dental Services Program Policies & Procedures

8

(IDSPPP), Chapter 2.6 (Dental Prosthodontic Services), Section I (Policy); Krieg Decl., Ex. E.

9

The procedure for executing this policy requires that “[a] dental prosthesis shall be constructed

10

only when . . . [a]n inmate-patient is edentulous [has no teeth], is missing an anterior [front] tooth,

11

or has seven or fewer posterior teeth in occlusion [teeth meeting other teeth].” Id., Section III6-A-

12

4-b.
$ Plaintiff does not claim that he meets any of these threshold standard conditions for

13
14

dental prostheses. Pltf. Depo. at 36:3-25, and 48:13-7.
$

15

For an inmate to qualify for “Special Prosthetic Needs” exempt from these conditions,

16

a dentist must request and obtain an exemption from the Dental Authorization Review (DAR)

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Committee. See IDSPPP Chap. 2.6, § III-E (2010) (III-F in 2014); Krieg Decl., Ex. E. The

18

request must identify the prisoner’s history of prior prosthetic needs and replacements, the

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dentist’s recommendations, and the special circumstances supporting such recommendations. Id.

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$ An inmate who has obtained formal authorization for a dental prosthesis will receive

21

such care even if transferred to another institution. “[A] completed prosthetic case or one that is

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in progress, regardless of the stage of completion, shall be forwarded directly to the SD

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[Supervising Dentist], or designee, to the inmate-patient’s new facility of assignment for

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completion or delivery.” Id., Chap. 2.6, § III-C-2-b.

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////

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////

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This provision is designated Section III in the 2010 IDSPPP, and Section IV in the 2014
IDSPPP. See Krieg Decl., Ex. E.
12

1

V.

2

Plaintiff moves for summary judgment on the ground that defendants were deliberately

The Parties’ Arguments

3

indifferent to his serious medical needs when they denied him the dental care prescribed by CTF

4

dentist Dr. Wise and approved by the CTF supervising dentist. See ECF No. 95. He notes that

5

Dr. Wise and the supervising dentist who partially granted his request for partial dentures stated

6

that their decision was “in accordance with the Dental Policy and Procedures,” see FAC at 14,

7

and contends on that basis that they found plaintiff’s pain and difficulties chewing to constitute

8

the “medical necessity” requiring partial dentures. See ECF No. 101 at 5, 6.

9

Plaintiff challenges the declarations of defendants Krieg and McDow, and that of Dr. Uy.

10

See ECF No. 101. He contends that defendants Krieg and McDow “did not have the intentions of

11

really looking into plaintiff’s complaint,” but instead “continued down a path of coming up with

12

reasons not to except (sic) the granted appeal from C.T.F.” Id. at 5. Plaintiff contends that

13

defendants improperly denied an “already pre[s]cribed treatment,” and “[s]o in a sense the

14

defendants actually were challenging Dr. Wise and his supervisor[.]” Id. at 7. Plaintiff

15

emphasizes that he continues to endure pain and discomfort.7 Id. at 8. Plaintiff contends that

16

defendants Krieg and McDow have offered only the following “false excuses,” viz., “Appeal was

17

from another prison, the changing of categories 2 to 4; plaintiff wanted partials for cosmetic

18

reasons; the appeal had not [been] exhausted . . . . Missing teeth that the CDC pulled[.] Plaintiff

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[’s] sentence is another factor to pain and suffering since plaintiff is deprived the right to seek

20

treatment elsewhere[.]” ECF No. 95 at 5.

21

Plaintiff contends that Dr. Uy’s declaration failed to consider “the entirety of the case.”

22

ECF No. 101 at 2. Plaintiff complains that Dr. Uy failed to consider the treatment records of Dr.

23

Wise and his supervising dentist, their assessment that plaintiff should have partial dentures, and

24

the preparation of two of plaintiff’s four oral quadrants. Id. Plaintiff also contends that Dr. Uy

25

inaccurately described Dr. Chang’s treatment of plaintiff on December 26, 2014, see Uy Decl. ¶

26

7

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28

Plaintiff asserts that defendants “probably don’t know how it feels to chew without back teeth
and suffer cuts, bruises and sleepless nights. Having to awake and try to soothe the pain with
pain pills. Or choking at times when having to swallowing food because he could not chew his
food fast enough in the dining hall. . . .” ECF No. 101 at 8.
13

1

2(c), because plaintiff “did not discuss partials with Dr. J. Chang,” ECF No. 101 at 3.

2

Plaintiff has submitted additional evidence discovered July 20, 2016, when he was

3

informed by attending dentist Dr. S. Madan that his dental pain when chewing for the past six

4

years is attributable to a “deep filling.” ECF No. 107 at 1. Plaintiff explains that “[o]n this day

5

the attending dentist stated that she couldn’t perform any treatment except extraction, due to three

6

fil[l]ings which one was placed deep into the tooth and up against the nerves, causing continuous

7

pain.” Id. at 1, 6. Plaintiff asserts that “[t]he defendants are liable for denying plaintiff medical

8

dental relief, leaving plaintiff to suffer continuous pain/suffering because they chose not to grant a

9

medical/dental procedure already pre[s]cribbed by the original attending dentist and supervisor

10

based on a granted 602 appeal.” Id. at 1-2.

11

Plaintiff seeks damages and an injunction from this court directing “defendants and all

12

persons acting in concert with them to accept the original binding granted appeal and treat

13

plaintiff and or that this court grant in its entirety plaintiff’s release so that he can obtain

14

treatment.” ECF No. 100 at 9-10. Plaintiff has also submitted the signatures of several inmates

15

who contend that there are “numerous problems concerning languish (sic) translation when

16

addressing our medical/needs.” See ECF No. 101 at 60-2 (Ex. E). The petition states that

17

interpreters are often required yet unavailable, rendering “the communication between the

18

physician and inmate . . . a guessing game using sign language gestures. . . . [M]any complaints

19

have arisen out of C.T.F. Soledad, CA.”8 ECF No. 101 at 61.

20

Defendants move for summary judgment on the ground that plaintiff has submitted no

21

evidence supporting a reasonable inference that either defendant had the culpable state of mind

22

required to sustain a deliberate indifference claim. See ECF No. 94-1 at 8-10. Defendants

23

maintain that their conduct was consistent with the provisions of CDCR’s IDSPPP, and they

24

appropriately found that plaintiff did not meet the standard requirements for obtaining dentures.

25
8

26
27
28

This petition is not relevant to this action because plaintiff has not contended that defendants
were deliberately indifferent to his dental needs due to a language barrier. Similarly, plaintiff’s
health care appeal based on his concerns that he may have contracted hepatitis from contaminated
dental equipment, see ECF No. 101 at 3, 44-59 (Ex. D), and his challenges to the opening of his
legal mail, see ECF No. 101 at 1-2, are not relevant to the matters currently before the court.
14

1

Defendants contend that plaintiff has failed to demonstrate he was or is entitled to an exemption

2

to these requirements. See ECF No. 99. They note that plaintiff’s subject appeal was only

3

“partially granted,” authorizing scaling and root planning, but did not expressly grant plaintiff’s

4

request for dentures. ECF No. 102 at 3. Defendants assert that “[i]f Plaintiff’s request for

5

dentures was granted, the response would have said ‘granted,’ not ‘partially granted.’” ECF No.

6

102 at 3. They contend that this action “logically indicates that Plaintiff was granted only the

7

precursor treatment for dentures so that when Plaintiff lost another tooth and qualified for

8

dentures, he would be ready.” ECF No. 94-1 at 8. Defendants emphasize that, even after

9

plaintiff’s transfer back to CTF, no dentist has made such a recommendation. Finally, defendants

10

contend that they were “not in a position” to grant plaintiff an exemption because they were not

11

his treating or evaluating dentist, but merely “a dental assistant and a supervising dentist who

12

reviewed his grievance.” Id. at 1.

13

Alternatively, defendants contend they are entitled to qualified immunity because their

14

challenged conduct was consistent with the provisions of CDCR’s IDSPPP, which reflect clearly

15

established law as negotiated pursuant to the prisoner dental care class action in Perez v. Tilton,

16

2006 WL 2433240, 2006 U.S. Dist. LEXIS 63318 (Case No. C-05-05241 JSW) (N.D. Cal. Aug.

17

21, 2006). See ECF No. 94-1 at 10-2.

18

VI.

19

It is undisputed, for purposes of the pending motions, that plaintiff’s dental problems –

Analysis

20

pain and difficulties chewing – present “serious medical needs” within the meaning of the Eighth

21

Amendment. See McGuckin, 974 F.2d at 1059-60. The parties’ consensus on this matter

22

satisfies the first prong of plaintiff’s deliberate indifference claim. See Jett, 439 F.3d at 1096.

23

The parties dispute the second prong of plaintiff’s claim, whether defendants purposefully failed

24

to act in response to plaintiff’s serious medical needs and thereby caused him harm. Id.

25

Defendants have submitted substantial evidence supporting their respective assertions that

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at no time did they “know of and disregard” an excessive risk of harm to plaintiff. Defendants,

27

who worked at SCC, were tasked with construing the impact, if any, of CTF’s August 2010

28

“partial grant” of plaintiff’s request for “partial dentures” on plaintiff’s current dental needs.
15

1

CTF’s decision is arguably ambiguous, partially granting plaintiff’s request for partial dentures.

2

Although the decision notes pre-denture preparation (scaling and root planning) in two of

3

plaintiff’s four oral quadrants, plaintiff submitted no evidence demonstrating the preparation of

4

his remaining two quadrants while he remained at CTF for several months before his transfer to

5

SCC, despite a DPC 2. Thus, neither the CTF decision nor plaintiff’s subsequent CTF care

6

reasonably alerted defendants to the possibility that plaintiff may be harmed by his failure to

7

obtain partial dentures.

8

Moreover, defendants were precluded from finding that the CTF decision qualified as an

9

“exemption” to IDSPPP’s standard requirements for dental prostheses – such assessment was not

10

included in the text of the CTF decision, and there is no evidence that SCC’s Supervising Dentist

11

was informed, upon plaintiff’s transfer from CTF to SCC, that plaintiff had a “prosthetic case . . .

12

in progress,” as would have been required. See IDSPPP, Chap. 2.6, § III-C-2-b. Nor is there any

13

evidence that a CTF dentist sought an exemption on plaintiff’s behalf through the Dental

14

Authorization Review Committee.

15

Due to the ambiguity of the CTF decision rendered more than a year before, defendants

16

were required to assess plaintiff’s current dental needs according to IDSPPP criteria. When

17

defendant SRDA Krieg interviewed plaintiff on October 17, 2011, and reviewed his dental

18

records, she accurately and objectively noted that plaintiff did not meet IDSPPP’s threshold

19

requirements for dentures. See FAC at 17. Plaintiff does not dispute this assessment. Defendant

20

Krieg also noted that Dr. Lor, the dentist who had most recently treated plaintiff the month

21

before, had accorded plaintiff a DPC 4, reflecting “no dental care needed.” Id. at 16. These

22

factors reasonably supported defendant Krieg’s assessment that, despite the partial grant of

23

plaintiff’s prior CTF appeal, he did not qualify for dentures under IDSPPP criteria. Id. at 17.

24

Moreover, as defendant Krieg points out, as a dental assistant, she did not have authority to

25

override Dr. Lor’s DPC assessment or, absent some compelling reason that she did not find, to

26

recommend to Dr. McDow that plaintiff be considered for an exemption to the IDSSPP

27

requirements.

28

On November 7, 2011, defendant Dr. McDow reviewed Krieg’s findings and denied
16

1

plaintiff’s appeal on First Level Review. Dr. McDow’s declaration indicates that he relied on

2

Krieg’s review of plaintiff’s dental records rather than undertaking his own review. Nevertheless,

3

there is no indication that Krieg’s review was inaccurate. As Dr. McDow states, he reasonably

4

relied on Krieg’s finding that plaintiff had nine occluding posterior teeth (two more than the

5

threshold requirement for dentures), and that Dr. Lor had, less than two months before, rated

6

plaintiff a DPC 4. Dr. McDow’s role in assessing the merits of plaintiff’s grievance was to ensure

7

that plaintiff’s dental care at SCC met IDSPPP standards, not to independently assess whether

8

plaintiff qualified for an exemption to those requirements, an assessment appropriately entrusted

9

to plaintiff’s treating dentists.

10

The decisions reached by both defendants are further supported by the evidence they have

11

submitted concerning plaintiff’s subsequent dental care, as set forth in the declaration of Dr. Uy.

12

Although plaintiff has been treated by several dentists since his return to CTF, he has not been

13

able to revive the substance of his prior appeal by obtaining pre-denture preparation of his

14

remaining two quadrants, or the agreement of a treating dentist to pursue a formal exemption

15

request. Moreover, plaintiff’s newly submitted evidence, which attributes some of his dental pain

16

to a deep filling, undermines plaintiff’s argument that his serious dental needs would be

17

successfully treated with partial dentures.

18

This court previously recommended against dismissing defendants Krieg and McDow

19

because they were each in a position to investigate and ascertain whether plaintiff’s serious dental

20

needs required further pursuit of plaintiff’s renewed request for partial dentures.9 See ECF No.

21

76. As this court then stated, “[a]t this juncture, the court is required to assess whether the

22

allegations of plaintiff’s FAC are sufficient to state a cognizable deliberate indifference claim

23

against defendants, not to reach an ultimate decision on the constitutionality of defendants’

24

challenged conduct.” Id. at 10-1. Upon consideration of the evidentiary record, it is now evident

25
9

26
27
28

In limited circumstances an individual who reviews an inmate appeal may be held liable under
Section 1983. To sustain such a claim, plaintiff must present evidence raising a reasonable
inference that the reviewing official knew about an existing constitutional violation and failed to
intervene. See Jett v. Penner, supra, 439 F.3d at 1098; Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989).
17

1

that Krieg’s and McDow’s assessments were well supported by plaintiff’s dental records and the

2

IDSPPP dental care standards. Plaintiff has submitted no evidence demonstrating that either

3

defendant was “aware of [] facts from which the inference could be drawn that a substantial risk

4

of harm” would befall plaintiff by declining to further pursue his request for partial dentures,

5

Farmer, 511 U.S. at 837, or that his continuing dental symptoms would be resolved by partial

6

dentures. In the absence of evidence showing that the chosen course of treatment “was medically

7

unacceptable under the circumstances,” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), a

8

difference of opinion between a prisoner and his prison medical providers – or among medical

9

providers – does not sustain a deliberate indifference claim, see Sanchez v. Vild, 891 F.2d 240,

10
11

242 (9th Cir. 1989); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
For these several reasons, the court finds that plaintiff has failed to demonstrate that either

12

defendant Krieg or McDow were aware of facts from which a reasonable inference could have

13

been drawn that their failure to pursue plaintiff’s request for partial dentures posed a substantial

14

risk of harm to him. Therefore, summary judgment should be granted for defendants Krieg and

15

McDow, and denied for plaintiff.

16

VII.

17

Alternatively, defendants seek summary judgment based on qualified immunity. Because

Qualified Immunity

18

the undersigned finds that plaintiff has not demonstrated a constitutional violation of his Eighth

19

Amendment rights, the court need not reach defendants’ qualified immunity defense.

20

VII.

21

For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

22

1. Defendants’ motion for summary judgment, ECF No. 94, be granted;

23

2. Plaintiff’s motion for summary judgment, ECF No. 95, be denied;

24

3. Judgment be entered for defendants; and

25

4. The Clerk of Court be directed to close this case.

26

These findings and recommendations are submitted to the United States District Judge

Conclusion

27

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

28

after being served with these findings and recommendations, any party may file written
18

1

objections with the court and serve a copy on all parties. Such a document should be captioned

2

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

3

failure to file objections within the specified time may waive the right to appeal the District

4

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

5

DATED: February 23, 2017

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