Uribe v. Babienco et al

Filing 34

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; REFERRING CASE TO JUDGE VADAS FOR MEDIATION; STAYING CASE; DENYING MOTION TO APPOINT EXPERT WITNESS by Judge William Alsup denying 29 Motion to Appoint Expert; granting in part and denying in part 16 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 9/16/2014)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 No. C 13-1106 WHA (PR) CESAR URIBE, 8 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; REFERRING CASE TO JUDGE VADAS FOR MEDIATION; STAYING CASE; DENYING MOTION TO APPOINT EXPERT WITNESS Plaintiff, 9 v. 11 For the Northern District of California United States District Court 10 12 PHILIP BABIENCO; LUZ F. NARES; WILLIAM J. HILL; GERALD ELLIS; M. LEW; CHI NGUYEN, (Docket Nos. 16, 23) Defendants 13 / 14 15 INTRODUCTION 16 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case in state 17 court, and it was then removed to federal court because it included claims under 42 U.S.C. 18 1983. The amended complaint asserts that defendants violated state law and his Eighth 19 Amendment rights by causing him to receive inadequate dental care at the California Training 20 Facility. After a review of the claims pursuant to 28 U.S.C. 1915A(a), they were found, when 21 liberally construed, to be cognizable, and the amended complaint was served upon defendants 22 Philip Babienco, Luz F. Nares, M. Lew, Chi Nguyen, Gerald Ellis and William J. Hill. 23 Defendants filed a motion for summary judgment (dkt. 16), plaintiff filed an opposition, and 24 defendants filed a reply brief. Plaintiff also filed a motion to appoint an expert witness (dkt. 25 29). 26 For the reasons discussed below, the motion for summary judgment is GRANTED. 27 STATEMENT 28 The following facts are not in dispute, unless otherwise noted. 1 On October 26, 2010, defendant Dr. Nares conducted a routine dental exam on plaintiff, 2 noted three missing molar teeth, and found that a fourth wisdom tooth (#32) was “unerupted,” 3 i.e. still under the gum line (Nares Decl. ¶ 7). Dr. Nares created a treatment plan for plaintiff’s 4 periodontal disease, but tooth #32 did not require treatment because plaintiff reported no pain or 5 other symptoms (ibid.; Babienco Decl. ¶ 11). Defendant Dr. Nares did not treat or see plaintiff 6 again (Nares Decl. ¶ 8). Over the following year, plaintiff received treatment for his 7 periodontal disease three times, but he did not report any pain or symptoms from the unerupted 8 tooth #32 (Babienco Decl. ¶ 13). that tooth #32 was “protruding” from the gum, that he had an “apparent abscess,” that he had 11 For the Northern District of California On November 1, 2011, plaintiff filed a form requesting dental treatment, complaining 10 United States District Court 9 “constant bleeding” from brushing his teeth, and that he had “constant slow throbbing pain” 12 (Nguyen Decl. Exh. A at AGO-00049). Defendant Dr. Nguyen received and reviewed the 13 request on November 3, 2011, and plaintiff’s condition as “urgent,” meaning that a dentist 14 would see him within three business days (Nguyen Decl. ¶¶ 7-8). As the clinic received 15 plaintiff’s request on a Thursday, three business days later was November 8; plaintiff was seen 16 by a dentist, defendant Dr. Babienco, on November 9 (id. at ¶¶ 7, 9, 12; Babienco Decl. ¶ 15). 17 Dr. Nguyen did not classify plaintiff’s need as “emergent” because it did not describe 18 “debilitating” pain or a risk of death or serious bodily harm (id. at ¶ 8). The prison’s dental 19 policy define dental emergencies in this way, and state that: 20 21 Examples of dental emergencies include acute oral and maxillofacial conditions characterized by trauma infection, pain, selling, or bleeding that is likely to remain acute or worsen without immediate intervention. 22 (Babienco Decl. Exh. B at 392), According to Dr. Nguyen, where, as here, a wisdom tooth is 23 impacted and is pushing horizontally on an adjacent tooth, there is no risk of death of serious 24 bodily injury and there is either no pain or the pain is “slow throbbing” but not disabling 25 (Nguyen Decl. ¶ 8). 26 When Dr. Babienco saw plaintiff on November 9, he reviewed plaintiff’s health history 27 and ordered x-rays (Babienco Decl. ¶ 15). The x-rays showed tooth #32 impacted and 28 horizontally impinging on tooth #31 (ibid.). According to Dr. Babienco, he did not prescribe 2 1 pain medication or antibiotics because he found no bleeding, swelling, abscess, or “indication” 2 of pain or infection (ibid.). According to plaintiff, however, he told Dr. Babienco that his tooth 3 was hurting and causing him pain (Uribe Decl. (Attached to Opp.) ¶ 9). After his November 9, 4 2011, appointment with Dr. Babienco, plaintiff thought that he would be receiving pain 5 medication, but when three days passed without his getting such medication, he filed an 6 administrative appeal complaining of “slow throbbing” and “acute pain” on November 13, 2011 7 (Uribe Decl. ¶ 11; Babienco Decl. Exh. A at AGO-00158-59). Plaintiff describes the pain he 8 was experiencing between November 1 and his surgery on November 28, as constant, and he 9 states that he could not chew on the right side, could not drink liquid that was too hot or too cold, would awaken at night and lose sleep, and experience headaches (Uribe Decl. ¶ 12). 11 For the Northern District of California United States District Court 10 At the November 9 appointment, Dr. Babienco recommended extraction of tooth #32 by 12 an oral surgeon because of the impingement and “prior history” of pain, and he noted that tooth 13 #31 had deep caries and might need extraction (Babienco Decl. ¶ 15). Because there is no oral 14 surgeon at CTF, Dr. Babienco requested approval from other prison officials to send plaintiff to 15 an outside surgeon; the request was granted, and plaintiff’s tooth #32 was successfully extracted 16 by an oral surgeon on November 28, 2011 (Babienco Decl. ¶¶ 16, 17). He was also prescribed 17 ibuprofen (id. at ¶ 17). Dr. Babienco examined plaintiff three days after his surgery and found 18 inflammation and swelling and a good blood clot (id. ¶ 18). Plaintiff reported “some pain,” but 19 was taking pain medication (ibid.). 20 In response to plaintiff’s administrative appeal from November 13, defendant Hill, a 21 manager of health services, assigned it to the prison’s dental clinic, and Dr. Babienco examined 22 plaintiff on December 6 (ibid.). By that time, plaintiff had already had surgery, a follow-up 23 examination, and was receiving pain medication for tooth #32, so they discussed tooth #31 (id. 24 at ¶ 19). Dr. Babienco informed plaintiff that he had to heal from extraction of the adjacent 25 tooth before treating tooth #31, and early the following year tooth #31 was restored and its 26 caries filled (id. at ¶ 20; Nguyen Decl. ¶ 14). 27 28 ANALYSIS A. STANDARD OF REVIEW 3 1 Summary judgment is proper where the pleadings, discovery and affidavits show that 2 there is "no genuine issue as to any material fact and that the moving party is entitled to 3 judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect 4 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute 5 as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a 6 verdict for the nonmoving party. 7 The moving party for summary judgment bears the initial burden of identifying those issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving 10 party has met this burden of production, the nonmoving party must go beyond the pleadings 11 For the Northern District of California portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 9 United States District Court 8 and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine 12 issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue 13 of material fact, the moving party wins. Ibid. 14 B. 15 ANALYSIS Plaintiff claims that defendants were deliberately indifferent to his serious dental needs in 16 violation of the Eighth Amendment in their treatment of tooth #32. He also adds state law 17 claims of negligence and dental malpractice, and two state statutory claims of negligent failure to 18 diagnose and failure to summon medical care. 19 1. Legal Standards 20 Deliberate indifference to a prisoner's serious medical needs violates the Eighth 21 Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 22 97, 104 (1976). Serious medical needs may include dental care. Hunt v. Dental Dep't., 865 F.2d 23 198, 200 (9th Cir. 1989). A serious medical need exists if the failure to treat a prisoner's 24 condition could result in further significant injury or the unnecessary and wanton infliction of 25 pain. Estelle, 429 U.S. at 104. A prison official is deliberately indifferent if he knows that a 26 prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 27 reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Neither negligence 28 nor gross negligence will constitute deliberate indifference. Id. at 835-36 & n.4 (1994). "A 4 1 difference of opinion between a prisoner-patient and prison medical authorities regarding 2 treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th 3 Cir. 1981). 4 The elements of professional negligence and dental malpractice in California are: (1) the 5 duty of the dentist to use such skill, prudence and diligence as other members of his profession 6 commonly possess and exercise, (2) a breach of that duty, (3) a proximate causal relationship 7 between the negligent conduct and the resulting injury, and (4) actual loss or damage resulting 8 from the dentist’s negligence. Burgess v. Superior Court, 2 Cal. 4th 1064, 1077 (1992). malpractice: (1) negligent failure to diagnose (Cal. Code Civ. Pro. 1714.8); and (2) failure to 11 For the Northern District of California Plaintiff also claims that defendants violated two California statutes related to dental 10 United States District Court 9 summon medical care (Cal. Govt. Code 845.6). 12 2. 13 Plaintiff claims that defendant Dr. Nares failed by not ordering extraction of his 14 unerupted wisdom tooth in October 2010. The evidence establishes that plaintiff did not have 15 any pain or symptoms from that tooth at that time, or indeed for another year. There is also 16 uncontroverted evidence that according to the generally accepted dentistry, an unerupted wisdom 17 tooth that is not causing pain or other symptoms does not need to be extracted (see Babienco 18 Decl. ¶ 11; Nares Decl. ¶ 9). Under these circumstances, there is no triable factual issue that she 19 was deliberately indifferent to his dental needs, and plaintiff does not dispute this conclusion in 20 his opposition (see Opp. 7-19). 21 Defendant Nares Plaintiff does argue in his opposition that Dr. Nares was negligent because x-rays in 22 October 2010 showed that tooth #32 was growing horizontally under the gum and impinging on 23 tooth #31. According to plaintiff, this made it reasonably foreseeable that he would have 24 problems with tooth #31 in the future, and that Dr. Nares should have therefore ordered 25 immediate extraction. There is no evidence that immediate extraction of an unerupted tooth, 26 such as tooth #32, that is not causing pain, bleeding or other symptoms, is medically required 27 simply because it may cause problems in the future. The only qualified dental opinions are to 28 the contrary, as noted above. 5 1 Plaintiff seeks appointment of a neutral expert under Rule 706, whose fees would be 2 borne by defendants because of plaintiff’s indigence, see Pedraza v. Jones, 71 F.3d 194, 196 (5th 3 Cir. 1995); McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991) (authorizing 4 appointment of expert witness and apportionment of costs to one side in case brought by indigent 5 prisoner), vacated and remanded on other grounds, 502 U.S. 903 (1991). Such an appointment 6 is denied because the opinion of Dr. Babienco and Dr. Nares appears to be reasonable under the 7 circumstances presented here, and there is no indication that a third dentist would testify 8 differently. The defendants will not be required to pay for the fees of a neutral expert who is not 9 reasonably likely to provide any new testimony. Accordingly, the motion to appoint a neutral 11 For the Northern District of California United States District Court 10 12 expert will be denied. As there is no triable factual issue as to whether Dr. Nares provided inadequate dental care, summary judgment is granted in her favor. 13 2. 14 Plaintiff claims that Dr. Nguyen should have classified his dental need as an emergency, Dr. Nguyen 15 which would have led to quicker treatment. Dr. Nguyen reviewed the form requesting dental 16 care filled out by plaintiff on November 1, 2011. She received the request on November 3 and 17 classified it as urgent, which led to plaintiff’s getting an appointment on November 9. There is 18 no evidence that she was unreasonable or improper in characterizing his needs as urgent but not 19 emergent given the symptoms plaintiff described in his request form. The bleeding was from 20 brushing his teeth and the pain was described as constant slow and throbbing, both of which 21 were consistent with her past experience that unerupted wisdom teeth generally do not cause 22 acute pain or threaten serious injury. Plaintiff’s assertion that he had an abscess was a lay self- 23 diagnosis that Dr. Nguyen could reasonably discount and that turned out to be wrong in any 24 event. Finally, there is no evidence that the two professional dental opinions that such symptoms 25 were urgent but not emergent (Babienco Decl. ¶ 14; Nguyen Decl. ¶¶ 7-8) are wrong. 26 Plaintiff argues that his symptoms constituted an emergency under the prison policy, but 27 in the request form he did not describe the symptoms as “acute” as required under the policy, and 28 he did not have an abscess or infection. To whatever extent plaintiff was experiencing more 6 1 acute symptoms than what he described in his request form, Dr. Nguyen could not have 2 reasonably have known about it. Dr. Nguyen did take plaintiff’s condition seriously in 3 characterizing it as urgent, as opposed to routine, plaintiff was examined by a dentist with a 4 week of the receipt of his request. There is no evidence that this amounted to deliberate 5 indifference or to a medically unacceptable treatment for his condition as he described it to Dr. 6 Nguyen. As there is no triable issue of fact that Dr. Nguyen violated plaintiff’s rights under the 7 Eighth Amendment or state law, summary judgment will be granted in her favor. There is a triable factual issue as to whether Dr. Babienco was deliberately indifferent to 10 plaintiff’s serious dental needs in failing to provide him with pain medication at the appointment 11 For the Northern District of California 3. 9 United States District Court 8 on November 9, 2011. The factual dispute is whether Dr. Babienco knew that plaintiff was in 12 pain at that time. According to Dr. Babienco, there was no bleeding, swelling or “indication” of 13 pain when he examined plaintiff on November 9. However, plaintiff states in his declaration that 14 he told Dr. Babienco on November 9 that he was in pain. He does not specifically state how 15 much pain he reported to Dr. Babienco at that time, but he states that during this general time 16 period he had constant pain, that was sharp as well as “slow throbbing” pain, headaches, 17 disrupted sleep, and pain while chewing and drinking certain liquids. Interpreting plaintiff’s 18 evidence in a light most favorable to him, a reasonable juror could conclude that plaintiff told 19 Dr. Babienco that he was in considerable pain at the November 9 appointment, and that Dr. 20 Babienco either deliberately or negligently disregarded plaintiff’s need for medication to 21 alleviate the pain until plaintiff had surgery. Furthermore, if, as plaintiff states, he reported pain 22 to Dr. Babienco on November 9, it would be his second report of pain in the area following his 23 request for dental care on November 1. 24 Dr. Babienco In addition to the evidence that plaintiff reported pain to Dr. Babienco on November 9, 25 there is evidence that in his administrative appeal on November 13, plaintiff reported having 26 “acute” tooth pain. It may be that Dr. Babienco was not aware of the appeal until after surgery, 27 but he does not specifically say so in his declaration. The form itself says that it first went to 28 defendant William Hill on November 15, who referred it to the dental clinic, and that Dr. 7 1 Babienco saw plaintiff on December 6. A reasonable fact-finder could find, however, that Dr. 2 Babienco was made aware of the administrative appeal --- and plaintiff’s report of pain therein -- 3 - earlier, and prior to November 28. 4 Defendants argue that plaintiff Dr. Babienco is not liable because plaintiff never describes in his declaration, Dr. Babienco cannot reasonably refuse to provide medication for the 7 pain simply because plaintiff did not also specifically ask for the medication. The material issue, 8 then, is whether plaintiff reported pain to Dr. Babienco and if so how much pain he described, 9 and this factual issue is very much in dispute. Defendants further contend that plaintiff did not 10 purchase any over the counter medication from the prison store during this time, but they do not 11 For the Northern District of California specifically requested pain medication. If plaintiff reported the considerable pain that he 6 United States District Court 5 provide any actual evidence showing this to be true, or of the availability of such medication, its 12 dosage, and plaintiff’s ability to pay for it during the relevant period of time. 13 Accordingly, there is a genuine dispute of material facts that would determine whether or 14 not Dr. Babienco violated plaintiff’s rights under the Eighth Amendment and state law by failing 15 to provide him with pain medication at the November 9 dental examination. Dr. Babienco is not 16 entitled to summary judgment on that issue. 17 This is not to say that there is evidence that reasonably calls into question other aspects 18 of Dr. Babienco’s care. There is no evidence suggesting that plaintiff had an actual infection 19 warranting antibiotics, that Dr. Babienco misdiagnosed him or was wrong to schedule surgery, 20 that the timing of the surgery was medically improper, or that Dr. Babienco’s actions in the 21 follow-up appointments were in any way inadequate. Accordingly, Dr.. Babienco is entitled to 22 summary judgment on plaintiff’s claims to the extent they are based on anything other than his 23 decision not to prescribe pain medication for plaintiff between November 9 and November 28, 24 when plaintiff was prescribed pain medication. 25 4. 26 Plaintiff claims that three supervisors, defendants Ellis, Lew and Hill are also liable for Defendants Ellis, Lew and Hill 27 his allegedly inadequate dental care. As they were not directly involved in plaintiff’s care, their 28 liability must turn on either deficiencies in the training or supervision they provided, or in their 8 1 knowing acquiescence in the other defendants’ inadequate care. See Starr v. Baca, 652 F.3d 2 1202, 1207 (9th Cir. 2011). Plaintiff provides no evidence about the supervision or training 3 provided by these defendants, let alone any evidence of deficiencies or shortcomings in the 4 supervision or training that led to plaintiff receiving inadequate care from Dr. Babienco. 5 Plaintiff requested discovery of prior complaints against Dr. Babienco and Dr. Nares, 6 presumably to attempt to show that the supervisor defendants failed to adequately respond to the 7 prior complaints, but when defendants searched for such prior complaints, none were found. 8 9 Nor is there evidence that Ellis, Dr. Lew or Hill knowingly acquiesced in deficiencies in plaintiff’s dental care. The only evidence that plaintiff may not have received adequate dental care, as discussed above, concerns the failure to provide him with pain medication between 11 For the Northern District of California United States District Court 10 November 9 and November 28. There is no evidence that either Dr. Lew or Ellis had any 12 knowledge of plaintiff’s pain or lack of medication during that time: Dr. Lew did not know about 13 plaintiff’s care or condition at any time, and Ellis only became aware of plaintiff when he 14 reviewed plaintiff’s administrative appeal, several months later, in February 2012 (Babienco 15 Decl. Exh. B at AGO-00140, 148-49). 16 Defendant Hill became aware of plaintiff’s complaints when he reviewed plaintiff’s 17 administrative appeal on November 15, , but there is no evidence that he knowingly acquiesced 18 in his receiving inadequate care. Hill is not a dentist or doctor with the expertise to question the 19 decisions of the treating dentists regarding the proper care for plaintiff’s teeth. Plaintiff had 20 recently been examined by Dr. Babienco and obtained a recommendation for surgery. There is 21 no evidence that Hill had grounds to second-guess his dental decisions, and referring the 22 administrative appeal to the dental clinic, as Hill did, where dental expertise could be brought to 23 plaintiff’s needs was a reasonable decision. For these reasons, the papers do not raise a triable 24 factual issue as whether defendants Ellis, Dr. Lew or Hill violated plaintiff’s rights under the 25 Eighth Amendment or state law. 26 C. REFERRAL TO PRO SE PRISONER MEDIATION PROGRAM 27 The court has established a Pro Se Prisoner Mediation Program. Certain prisoner civil 28 rights cases may be referred to a neutral magistrate judge for prisoner mediation proceedings. 9 1 The proceedings consist of one or more conferences as determined by the mediator. As 2 summary judgment is being denied in part, this case is appropriate for mediation and will be 3 referred to the Pro Se Prisoner Mediation Program. 4 5 CONCLUSION Defendants’ motion for summary judgment (dkt. 16) is GRANTED IN PART AND DENIED 6 IN PART: 7 medication, as described above, and the motion is GRANTED in favor of defendants Dr. 8 Babienco, Dr. Nares, Dr. Nguyen, Hill, Ellis, and Dr. Lew on all other claims. The motion for 9 appointment of an expert witness (dkt. 23) is DENIED. This case is REFERRED to Magistrate Judge Vadas pursuant to the Pro Se Prisoner 11 For the Northern District of California United States District Court 10 the motion is DENIED to defendant Dr. Babienco on plaintiff’s claims concerning pain Mediation Program. All further proceedings in this case except those related to the mediation 12 and compliance with the subpoena as ordered above are STAYED pending completion of that 13 procedure. 14 The mediation proceedings shall take place within 120 days of the date this order is 15 entered. Magistrate Judge Vadas shall coordinate a time and date for a mediation proceeding 16 with all interested parties or their representatives and, within five days after the conclusion of the 17 mediation proceedings, file a report. All mediation proceedings shall be confidential and no 18 statement made therein will be admissible in any proceedings in the case, unless the parties 19 otherwise agree. No part of the mediation proceeding shall be reported, or otherwise recorded, 20 without the consent of the parties, except for any memorialization of a settlement. 21 The clerk shall send a copy of this order to Magistrate Judge Nandor Vadas. 22 IT IS SO ORDERED. 23 Dated: September 24 16 , 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 25 26 27 28 10

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