Bell v. Nguyen et al

Filing 31

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge William H. Orrick on 04/15/2014. (jmdS, COURT STAFF) (Filed on 4/15/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIE BELL, JR.,

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Case No. 13-1987 WHO (PR)

Plaintiff,
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ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT

v.
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DR. CHI NGUYEN and DR. ANDREW
WISE,

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Doc. No. 24

Defendants.

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United States District Court
Northern District of California

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INTRODUCTION

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In this federal civil rights action brought under 42 U.S.C. § 1983, plaintiff Willie

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Bell alleges that two dentists, employees of the Correctional State Prison (“CTF”) in

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Soledad, where Bell was previously incarcerated, were deliberately indifferent to his

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serious dental needs in violation of the Eighth Amendment. The dentists move for

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summary judgment.1 For the reasons stated herein, defendants’ motion for summary

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judgment is GRANTED.

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BACKGROUND

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The parties have different views of the facts. Although none of the differences is material

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to the issue of whether either defendant was deliberately indifferent to Bell’s serious dental needs,

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the different perspectives are highlighted below.

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I. Defendants’ View of the Facts

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Dr. Chi Nguyen, one of the defendants, is a dentist employed by the California

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Bell filed an unsolicited surreply and a declaration, (doc. nos. 29, 30), after the briefing
was completed. Those papers are largely duplicative of his earlier arguments and will not
be considered by the Court. See Civil L.R. 7-3(d) (once reply is filed, no additional
memoranda or papers may be filed without prior Court approval).
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Department of Corrections and Rehabilitation (“CDCR”) who worked at CTF and treated

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Bell from December 2008 through October 2011. (Nguyen Dec. ¶¶ 1-2, 8-15, 27.)

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During that time period, an inmate would request a dental appointment by filling
out a Health Care Services Request, CDCR Form 7362, (“HCSR”) or by asking a staff

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person to contact the dental department. (Id.) Each newly admitted inmate would see a

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CDCR dentist who would assign the inmate a Dental Priority Classification Code (“DPC”)

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based upon the occurrence of any disease, significant malfunction or injury and

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medical/dental necessity. (Id. ¶ 7.) A new DPC would be assigned to the inmate after

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each dental appointment. (Id.) The DPC procedure was put in place to ensure that all

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inmate-patients would have equitable access to dental services based on the severity of

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their dental need. (Id.) Each DPC Code indicates a specific timeframe for the next dental

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appointment. (Id.)

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Nguyen first saw Bell on December 29, 2008, when he was complaining of a

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sensitive upper left tooth. (Id. ¶ 8.) Nguyen performed a triage examination. (Id.)

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Nguyen observed wear on the biting service of tooth number 11, the upper left cuspid.

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(Id.) This is often an indication that the patient grinds his teeth, which can wear the

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enamel down and make the teeth sensitive. (Id.) After the examination, Nguyen

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scheduled Bell for a comprehensive examination and assigned him a DPC-2, which is the

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designation for interceptive care and treatment within 120 days. (Id.)

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Nguyen next saw Bell on March 3, 2009 for another triage examination. Id.

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¶ 9.) Bell told Nguyen that his tooth number 14 had been throbbing, but was better. (Id.)

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Bell’s x-rays showed bone loss and heavy calculus on tooth number 14. (Id.) Nguyen

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diagnosed tooth number 14 with occlusal trauma, a condition where pain results from the

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patient biting down on something hard, and where the pain dissipates over time if the

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patient eats on the other side of the mouth. (Id.) Bell was assigned a DPC-2 and

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scheduled for a comprehensive examination. (Id.)

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Nguyen next saw Bell on May 28, 2009 for a comprehensive examination. (Id.
¶ 10.) She reviewed x-rays taken on May 19, 2009 and noted that Bell had a small,
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pigmented macule (spot) on the roof of his mouth. (Id.) She observed moderate wear on

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the biting surfaces of his teeth, indicating that he grinds his teeth, moderate to heavy

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calculus and moderate periodontitis (gum disease and bone loss). (Id.) These are

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indications of poor oral hygiene and bone loss over many years. (Id.) Nguyen instructed

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Bell on proper care for his teeth and scheduled him for scaling and root planing (“SRP”), a

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deep cleaning of the teeth and root surfaces below the gums. (Id.) Bell was assigned a

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DPC-2. (Id.)

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Nguyen next saw Bell on August 25, 2009, when she performed a periodontal
examination which revealed deep periodontal pockets indicating moderate bone loss. (Id.
¶ 11.) A deep periodontal pocket forms when the ligament surrounding the tooth separates

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from the base of the tooth. (Id.) The pocket attracts bacteria and is difficult to clean. (Id.)

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After this examination, Bell was assigned a DPC-2. (Id.)

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On September 10, 2009, Nguyen treated Bell’s periodontitis on the right side of his

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mouth. (Id. ¶ 12). Nguyen gave Bell local anesthesia, but he was still sensitive to scaling

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and root planing when she removed the calculus. (Id.) Nguyen noted that Bell would need

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more local anesthetic at the next cleaning. (Id.) Bell was given a DPC-2 and scheduled

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for a SRP treatment on the left side of his mouth. (Id.)

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On November 19, 2009, Nguyen continued treatment of Bell’s periodontitis on the

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left side of his mouth. (Id. ¶ 13.) She gave him a stronger local anesthetic. (Id.) She

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informed Bell that he had decay on the surfaces of tooth number 14, the upper left first

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molar, and tooth number 16, the upper left third molar. (Id.) Bell was given a DPC-2 and

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scheduled for an appointment for filling teeth numbers 14 and 16. (Id.)

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On February 2, 2010, Nguyen filled Bell’s teeth numbers 14 and 16. (Id. ¶ 14).

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The cavities were extensive. (Id.) To fill each cavity, Nguyen placed a base on the

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deepest part of the cavity before condensing the amalgam and restoring the tooth. (Id.) In

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instances like this, where the cavities are deep enough to require a base, Nguyen instructs

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the patient to monitor the tooth for future symptoms and she so instructed Bell. (Id.) Bell

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was assigned a DCP-2. (Id.)
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On February 17, 2010, Dr. Jennings, an oral surgeon, examined Bell for the macule

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on the roof of his mouth. (Id. ¶ 16.) Dr. Jennings recommended that Bell have an

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excisional biopsy. (Id.) On March 25, 2010, Nguyen saw Bell for a triage examination.

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(Id. ¶ 17). On April 27, 2010, Bell had oral surgery to remove the macule. (Id. ¶ 18.)

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On May 3, 2010, Nguyen saw Bell for a post-operation visit. (Id. ¶ 19.) She noted

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that he was taking morphine sulfate and Tylenol for pain. (Id.) Bell had no complaint of

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pain. (Id.) Nguyen scheduled Bell for night-guard impressions. (Id.) A night-guard

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would help manage Bell’s grinding of his teeth during sleep. (Id.) Bell was assigned a

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DPC-3. (Id.)

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On June 14, 2010, Nguyen saw Bell for a triage visit. (Id. at 20). He had no

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complaints of pain. Nguyen re-scheduled him for night-guard impressions. (Id.) He

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remained a DPC-3. (Id.) On September 23, 2010, Nguyen took impressions of Bell’s

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teeth for a night-guard. (Id. ¶ 21). Bell remained a DPC-3. (Id.)

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On October 14, 2010, Nguyen saw Bell for a periodic examination and x-rays. (Id.

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¶ 22). She delivered the night-guard to him and advised him on how to use it and take

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care of it. (Id.) Bell indicated he was concerned about gum recession on the side of tooth

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number 14, his upper left first molar. (Id.) He had no complaints of pain. (Id.) Nguyen

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instructed Bell on proper brushing and flossing technique because she concluded that

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Bell’s gum recession was caused by improper brushing and flossing. (Id.)

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Nguyen did not examine Bell again until September 2011. Bell’s medical records

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indicate that, from October 2010 through September 2011, he was seen on at least four

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occasions by other CTF dentists and staff for continued treatment of his periodontal

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disease and other dental conditions. (Id. ¶ 23). During this time, his dental priority

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remained a DPC-3, the designation for routine rehabilitative care. (Id.) The records do not

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indicate that Bell complained of pain at any of these visits. (Id.)

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On August 29, 2011, Bell filled out a HCSR form stating that staff had drilled a

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hole in his tooth and he was in pain. (Id. ¶ 24). This request was received by the dental

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department on September 1, 2011. (Id.) On the same day the request was received, Bell
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was seen by Dr. Marlais for a triage examination. (Id. ¶ 25.) Bell told Dr. Marlais that

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there was a hole in tooth number 16 and that he had been feeling pain in that tooth off and

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on for a few weeks. (Id.) Dr. Marlais ordered an x-ray. (Id.) After his examination, Dr.

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Marlais recommended extraction or sedative filling of tooth number 16. (Id.) Bell was

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receiving morphine and acetaminophen for pain unrelated to his tooth. (Id.)

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On September 25, 2011, Bell filled out an HCSR form again stating that there was a

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hole in his tooth and he was experiencing throbbing pain. (Id. ¶ 26.) The form was

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received by the dental department on September 26, 2011. (Id.) The next day, September

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27, 2011, Bell saw Nguyen at the dental clinic for an emergency appointment. (Id. ¶ 27.)
Nguyen observed incipient decay, inflamed gums and advanced bone loss around tooth

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number 16 and diagnosed it with hyperemia, a condition that occurs when an injury,

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infection or irritant causes the blood vessels around the tooth’s pulp to dilate, resulting in

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painful pressure. (Id.) Nguyen attempted to explain this to Bell, who insisted that there

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was a hole in his tooth. (Id.) Bell became argumentative and belligerent and Nguyen

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called a Correctional Officer to remove him from the clinic. (Id.) Nguyen recommended

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extraction of tooth number 16 as soon as possible. (Id.) She noted that the CTF medical

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department had prescribed Bell acetaminophen (Tylenol) and morphine sulfate for pain

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that was unrelated to his tooth pain. (Id.) Therefore, she did not prescribe additional pain

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medication for Bell. (Id.) Nguyen raised Bell’s priority status to a DPC 1c and scheduled

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him for extraction of tooth number 16. (Id.)

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On September 30, 2011, Dr. Marlais extracted Bell’s tooth number 16. (Id. ¶ 28.)

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He prescribed Motrin, for pain, and Amoxicillin, an antibiotic. (Id.) Dr. Marlais

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scheduled Bell for a post-operative visit a week later. (Id.)

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On October 7, 2011, Bell saw Dr. Andrew Wise, the second defendant, for the post-

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operative appointment. (Id. ¶ 29.) Wise noted the extraction site had no swelling, pain or

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bleeding and was healing normally. (Id.) Bell was classified a DPC-4. (Id.)

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Nguyen states that, at no time during her treatment of Bell did she intend to delay in
providing him dental treatment or to cause him pain, suffering or harm. (Id. ¶ 31.) She
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also states that, at all times during her treatment of Bell, she was motivated by genuine

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concern for his health and well-being. (Id.)

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II. Bell’s View of the Facts
Bell agrees that Dr. Nguyen performed the work stated above. However, he states

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that, on November 19, 2009, when Nguyen performed the deep cleaning of his teeth and

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gums on the left side of his mouth, she accidentally caused a hole to be drilled in his upper

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left molar, tooth number 16. (Opp, Ex. a, Statement of Facts, ¶ 1.)2 The next time Bell

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saw Nguyen, he mentioned the hole to her, but she pretended not to hear him. (Id.) When

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Bell saw Nguyen about the mouth-guard, he mentioned the hole in his tooth to her and
asked if she would fill it. (Id. ¶ 4.) Nguyen told him the tooth could not be filled and that

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it was best to leave it alone because removing food particles from it would cause irritation

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and pain. (Id. ¶ 5.) Nguyen told Bell that, because he did not have all of his teeth in the

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back of his mouth, it was best not to do anything to irritate tooth number 16 and to leave it

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alone until the time came for it to be extracted. (Id.) Bell thought that, if the tooth can’t be

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fixed, he would “hang on to it” until he could no longer stand it. (Id.)
Time passed, and Bell received his mouth-guard. (Id. ¶ 6.) That process turned out

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well. (Id.)

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Beginning in June 2011, Bell began to experience throbbing pain in tooth number

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16. (Id. ¶ 7.) On August 29, 2011, Bell sent in a health care request form indicating that

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he was in pain and requesting immediate dental care. (Id. ¶ 8.) Bell was “ducated” to see

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Wise on September 1, 2011.3 (Id.) Bell told the x-ray technician that Nguyen had

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accidentally drilled a hole in the side of his tooth while she was cleaning his teeth. (Id.)

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The x-ray technician stated that the x-ray showed that the pain was from bone loss and not

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a hole. (Id.) Bell believed she was lying to protect Nguyen. (Id.)

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For the purposes of this motion, it is assumed that whether Nguyen drilled a hole in Bell’s tooth
is disputed even though no records support Bell’s allegation and the inference from the exhibits is
to the contrary.
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The parties do not define the term, “ducat.” From the context of the sentences in which it
appears, it seems to mean a written appointment to see a particular dentist.
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Bell also told Wise about the hole in his tooth. (Id. ¶ 11). Wise first stated there

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was no hole. (Id.) This made Bell angry because he thought Wise also was protecting

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Nguyen. (Id.) However, when Wise checked tooth number 16 with a mirror, he said he

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did see a hole. (Id.) Even though Wise saw the hole and knew that Bell was in

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excruciating pain, he did not treat him at that time. (Id. ¶ 12.)
On September 25 and 26, Bell filed emergency health care requests, but was told no

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dentist was in. (Id. ¶ 16.) On September 27, 2011, an appointment was made for Bell to

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see Nguyen. (Id. ¶¶ 18-19). Bell attempted to explain to Nguyen about the hole in his

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tooth and she denied that there was a hole. (Id. ¶ 20.) After Nguyen examined Bell’s
teeth, she told him that she would schedule him back for an appointment to have the

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painful tooth filled or extracted. (Id. ¶ 26.) Bell got mad because he was in pain and

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needed to have the tooth treated at that time. (Id.) Nguyen called an officer to escort Bell

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from the dental clinic. (Id. ¶ 27.)

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On September 29, 2011, no ducat came for Bell to see a dentist. (Id. ¶ 32.) Bell

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thought “they had it in for him,” to protect Nguyen. (Id.) On September 30, 2011, Bell

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was given an appointment with Dr. Marlais. (Id. ¶ 33.) Dr. Marlais said that the tooth had

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to be extracted because it was abscessed and could not be saved. (Id.) Dr. Marlais

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extracted the tooth in moments. (Id. ¶ 34). Dr. Marlais gave Bell ibuprofen and

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antibiotics and instructions about how to care for the extraction site. (Id. ¶ 35.)
On October 7, 2011, Bell saw Wise for a post-operation visit. (Id. ¶ 36). He was a

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different dentist than the Wise that Bell saw on September 1, 2011. (Id.)
DISCUSSION

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I.

Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits

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demonstrate that there is “no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those

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which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a
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reasonable jury to return a verdict for the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying

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those portions of the pleadings, discovery and affidavits that demonstrate the absence of a

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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where

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the moving party will have the burden of proof on an issue at trial, it must affirmatively

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demonstrate that no reasonable trier of fact could find other than for the moving party. On

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an issue for which the opposing party by contrast will have the burden of proof at trial, as

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is the case here, the moving party need only point out “that there is an absence of evidence

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to support the nonmoving party's case.” Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go

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beyond the pleadings and, by its own affidavits or discovery, set forth specific facts

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showing that there is a genuine issue for trial. The court is only concerned with disputes

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over material facts and “factual disputes that are irrelevant or unnecessary will not be

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counted.” Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in

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search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

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1996). The nonmoving party has the burden of identifying, with reasonable particularity,

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the evidence that precludes summary judgment. Id. If the nonmoving party fails to make

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this showing, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477

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U.S. at 322.
In considering a motion for summary judgment, the court must view the evidence in

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the light most favorable to the non-moving party; if, as to any given fact, evidence

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produced by the moving party conflicts with evidence produced by the non-moving party,

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the court must assume the truth of the evidence set forth by the non-moving party with

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respect to that fact. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

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II.

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Claims
Bell claims that Nguyen was deliberately indifferent to his serious dental needs

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because she accidentally drilled a hole in his tooth while she was cleaning it on November

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19, 2009, she did not acknowledge her mistake and she did not treat this tooth until it had
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to be extracted. Bell also claims that Nguyen was deliberately indifferent because she

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knew he was in pain, yet she did not prescribe pain medication for him. Bell claims that,

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on September 1, 2011, Wise was deliberately indifferent to Bell’s serious dental needs

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because Wise failed to treat Bell’s tooth even though he knew the tooth was causing Bell

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excruciating pain.

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A. Legal Standard for Deliberate Indifference to Serious Dental Need

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A determination of “deliberate indifference” involves an examination of two
elements: (1) the seriousness of the prisoner’s medical needs, and (2) the nature of the

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defendant’s response to those needs. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992) (overruled on other grounds by, WMX Technologies, Inc. v. Miller, 104 F.3d 1133,

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1136 (9th Cir. 1997) (en banc)). Serious medical needs may include dental care needs.

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Hunt v. Dental Dep't., 865 F.2d 198, 200 (9th Cir. 1989) (dental care important medical

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need of inmates). Deliberate indifference to a prisoner’s serious medical needs violates the

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Eighth Amendment’s proscription against cruel and unusual punishment. Estelle v.

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Gamble, 429 U.S. 97, 104 (1976).

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A prison official is deliberately indifferent if he knows that a prisoner faces a

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substantial risk of serious harm and disregards that risk by failing to take reasonable steps

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to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994) (equating standard with that of

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criminal recklessness). The prison official must not only “be aware of facts from which

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the inference could be drawn that a substantial risk of serious harm exists,” but “must also

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draw the inference.” Id. Consequently, in order for deliberate indifference to be

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established, there must exist a purposeful act or failure to act on the part of the defendant

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and harm resulting therefrom. McGuckin, 974 F.2d at 1060.

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Indifference may appear when prison officials deny, delay or intentionally

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interfere with medical treatment, or it may be shown in the way in which prison officials

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have provided medical care. Id. at 1062. However, “[a] difference of opinion between a

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prisoner-patient and prison medical authorities regarding treatment does not give rise to a

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§ 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To prevail on a
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claim involving choices between alternative treatments, a plaintiff must establish that the

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course of treatment the doctors chose was “medically unacceptable under the

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circumstances” and that they embarked on this course in “conscious disregard of an

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excessive risk to [the plaintiff’s] health.” Toguchi v. Chung, 391 F.3d 1051, 1058–60 (9th

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Cir. 2004). A claim of mere negligence related to medical problems is not enough to make

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out a violation of the Eighth Amendment. Franklin, 662 F.2d at 1344.

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B. Claim Against Dr. Nguyen

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Bell argues that the focus of this lawsuit should be on his tooth number 16 and that

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evidence showing that Nguyen adequately treated all of his other dental needs from
December 2008 through 2011 is not relevant to his claim. This argument is unpersuasive.

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The manner in which Nguyen treated Bell’s dental needs over an extended period of time

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is relevant to show her subjective state of mind toward Bell’s dental health. Bell does not

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dispute that, except for tooth number 16, he has no complaints about how Nguyen treated

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his dental needs. In her declaration, Nguyen states, “At no time did I intentionally or

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knowingly cause Bell any pain, suffering, injury or harm. I was, at all times, motivated by

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genuine concern for Bell’s health and well-being.” Nguyen Dec. ¶ 31. The fact that

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Nguyen provided Bell with adequate treatment for many years in regard to many dental

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issues supports the conclusion that she did not subjectively intend to deny, delay or

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interfere with Bell’s dental treatment.

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Further, assuming that Nguyen accidentally drilled a hole in Bell’s tooth number 16

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while she was cleaning his teeth, that does not show that Nguyen was deliberately

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indifferent toward Bell’s dental needs. Bell acknowledges that Nguyen’s conduct was

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negligent, not intentional. Deliberate indifference requires an intentional act on the part of

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the defendant; negligence does not give rise to a claim of deliberate indifference. See

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Franklin, 662 F.2d at 1344.

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A difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a § 1983 claim. See id. Bell’s main complaint

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seems to be that Nguyen did not acknowledge that she drilled the hole in his tooth.
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Nguyen eventually diagnosed Bell’s tooth number 16 with decay on the outside, inflamed

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gums, advanced bone loss and hyperemia. Bell and Nguyen had different opinions about

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the cause of the problem with tooth number 16. That Nguyen’s diagnosis was different

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from Bell’s does not establish that she was deliberately indifferent toward his serious

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dental needs.

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Bell states in his declaration that, at one visit with Nguyen, he asked her if tooth

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number 16 could be filled and when she said no, it’s best to leave it alone for now, Bell

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decided that, if tooth number 16 could not be fixed, he “might as well hang onto it until I

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can no longer stand it.” Opp., Statement of Facts ¶ 5. At that time, at least, Bell agreed

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with Nguyen’s treatment plan for tooth number 16.
Nguyen did not treat or see Bell from October 2010 to September 2011. During

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this time, Bell saw several other dental professionals and the medical records of these

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visits do not indicate that Bell mentioned a hole in his tooth or that he was experiencing

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pain from a hole in his tooth. Bell acknowledges that other dentists worked on his teeth for

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the mouth-guard and deep gum cleaning which “worked out fine.” Id. ¶ 6. Nguyen was

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not responsible for failing to treat Bell’s tooth during the time when he was being treated

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by other dental professionals.

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According to Bell’s own statements, it was not until June 2011 that he began

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experiencing pain in tooth number 16. This was eight months after he last saw Nguyen

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and more than one year after she allegedly drilled the hole in his tooth in November 2009.

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It was not until August 29, 2011, that Bell sent a health care request informing dental staff

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that he was in pain. It was not until September 27, 2011 that Bell again saw Nguyen.

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Nguyen’s progress notes of this visit indicate that Bell told her that his “tooth has a hole in

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it,” that she examined the tooth and saw swelling and decay around it and recommended

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extraction. Motion, Ex. A, AGO-00030. Nguyen raised Bell’s priority status to DPC 1c

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and scheduled him for extraction of tooth number 16. (Nguyen Dec. ¶ 27.) Although Bell

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did not get tooth number 16 extracted on September 27, 2011, the day he saw Nguyen,

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three days later, on September 30, 2011, Dr. Marlais extracted it. This evidence shows
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that, contrary to Bell’s claims, on September 27, 2011, Nguyen examined Bell’s tooth

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number 16, realized it needed immediate treatment and raised his priority status, ensuring

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that he received the necessary treatment three days later. This evidence shows that

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Nguyen did not delay or deny Bell treatment for his serious dental need.

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Bell also faults Nguyen for failing to prescribe pain medication for him on

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September 27, 2011, when she knew he was in pain from tooth number 16. However,

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Nguyen’s notes indicate that the CTF medical department had prescribed morphine and

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acetaminophen for other pain Bell was experiencing. Motion, Ex. A, AGO-00030.

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Nguyen states that, because Bell was already taking pain medication, she did not prescribe
additional pain medication for him. Nguyen Dec. ¶ 27. Bell’s wish for more pain

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medication establishes that he had a difference of opinion with Nguyen’s conclusion that

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he was already receiving sufficient pain medication. As stated previously, a difference of

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medical opinion is insufficient to establish deliberate indifference. See Toguchi, 391 F.3d

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at 1058 (difference of opinion regarding medication insufficient to establish deliberate

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indifference unless plaintiff shows defendant’s chosen choice was unacceptable under the

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circumstances and was chosen intentionally in disregard of an excessive risk to the

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plaintiff’s health).

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In summary, viewing the evidence in the light most favorable to Bell, he has failed

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to raise a genuine dispute of material fact showing that Nguyen was deliberately

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indifferent to his serious dental need. The undisputed evidence shows that Nguyen

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provided Bell with proper dental care over a number of years for different dental health

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issues. That Nguyen allegedly accidentally drilled a hole in Bell’s tooth on November 19,

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2009 is insufficient to show that she acted intentionally, which is required to show

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deliberate indifference. Nguyen was not responsible for failing to treat Bell from October

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2010 through September 2011 when other professionals treated him. When Bell next saw

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Nguyen on September 27, 2011 with a painful tooth number 16, Nguyen diagnosed the

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condition, informed Bell of her findings, and expedited extraction of the painful tooth, thus

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ensuring Bell received adequate dental care. She noted that Bell was receiving pain
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medication for non-tooth related pain and deemed that sufficient for Bell’s pain from tooth

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number 16. This difference of opinion regarding pain medication is insufficient to

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establish deliberate indifference. Therefore, Nguyen’s actions demonstrate that

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subjectively she intended to provide Bell with proper care, not that she intended to

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disregard or be indifferent to his dental care.

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Accordingly, summary judgment on this claim is granted in favor of Nguyen.

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C. Claim Against Wise

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Bell claims that on September 1, 2011, Wise was deliberately indifferent to his

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serious need to get treatment for his infected tooth number 16 by refusing to treat him.
However, defendants submit evidence showing that, on September 1, 2011, Bell was

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Northern District of California

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treated by Dr. Marlais, not by Wise. (Motion, Ex. A, AGO-0031, Sept. 1, 2011 progress

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note by Dr. Marlais.) In his opposition, Bell insists that the person he saw on September 1,

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2011 was Wise, but acknowledges that, on October 6, 2011, he was treated by Wise and

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that this person had a different appearance than the Wise he saw on September 1. Bell

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argues that the dental professionals lied about their identities in order to avoid working on

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his tooth. Opp., Statement of Facts ¶ 36. Defendants’ explanation for this confusion is

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that Bell probably received a ducat to see Wise but that he ended up seeing Dr. Marlais,

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which can happen if one dentist finishes with his scheduled appointments before another

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dentist on a particular day. Reply at 5, n.1.

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In any event, whether Bell saw Wise or Dr. Marlais is not dispositive because the

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dentist who saw Bell on September 1, 2011 treated him by conducting a triage

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examination, ordering an x-ray and advising extraction or a sedative filling of tooth

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number 16. Motion, Ex. A, AGO-00031.

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Although Bell’s tooth was not extracted that day as he wished, he received

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appropriate dental care on September 1, 2011. The dentist that examined Bell that day set

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the procedure in motion so that Bell could have tooth number 16 expeditiously treated by

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extraction or filling. This treatment does not show that the dentist was deliberately

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delaying or denying necessary dental treatment to Plaintiff. As discussed above, on
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September 30, 2011, Dr. Marlais extracted tooth number 16, thus providing the care Bell

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sought.

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Viewing the evidence in the light most favorable to Bell, he fails to show a genuine

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issue of material fact that Wise was deliberately indifferent to Bell’s serious dental needs.

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Therefore, summary judgment on this claim is granted in favor of Wise.

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C. Request to Amend Complaint

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In the event that defendants’ motion for summary judgment is denied, Bell seeks

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leave to amend his complaint to add additional defendants. In light of the fact that

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defendants’ motion for summary judgment is granted, this request is denied as moot.
CONCLUSION

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United States District Court
Northern District of California

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Bell having failed to show that there are genuine issues of material fact as to any of

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his claims, defendants’ motion for summary judgment (doc. no. 24) is GRANTED as to all

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claims against defendants Nguyen and Wise.

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The Clerk shall enter judgment in favor of all defendants as to all claims, terminate
Docket No. 24, and close the file.
IT IS SO ORDERED.
Dated: April ___, 2014
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_________________________
WILLIAM H. ORRICK
United States District Judge

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P:\PRO-SE\WHO\CR 13\Bell v Nguyen 13-1987 MSJ2.rmh.docx

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

WILLIE BELL,

Case Number: CV13-01987 WHO

Plaintiff,

CERTIFICATE OF SERVICE

v.
DR. CHI NGUYEN, et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 15, 2014, I SERVED a true and correct copy of the attached, by placing said copy
in a postage paid envelope addressed to the person hereinafter listed, by depositing said envelope
in the U.S. Mail.

Willie Bell H-90929
Central Institution for Men
P.O. Box 600 West Bldg. 252 U
Chino, CA 91708-0600

Dated: April 15, 2014
Richard W. Wieking, Clerk
By: Jean Davis, Deputy Clerk