Roberts v. Hensley et al

Filing 78

ORDER Adopting Report and Recommendation. The Court finds the Report and Recommendation correct and adopts it. (Dkt. 75 ) Defendants' summary judgment motion is granted in part, and denied in part. (Dkt. 61 ) Signed by Judge Larry Alan Burns on 3/16/2018. (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
TONY ROBERTS,

CASE NO. 15cv1871-LAB (BLM)

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Plaintiff,
vs.

ORDER ADOPTING REPORT AND
RECOMMENDATION

S. HENSLEY, et al.,
Defendants.

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The Eighth Amendment protects prisoners like Tony Roberts from deliberate

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indifference to their serious medical needs. Prison dentists diagnosed Tony Roberts with

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two cavities; they weren’t treated. Dentists then diagnosed Roberts with seven cavities; they

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weren’t treated either. Four years and seventeen cavities later, Roberts received treatment.

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He sued all of the dental-care providers involved for violating his Eighth Amendment rights.

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Judge Major recommended granting summary judgment to all but one of the

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Defendants—Dr. Sabati. She examined Roberts two years after his initial cavity diagnosis,

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but instead of ensuring his cavities were filled, Sabati lowered the priority assigned to

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Roberts’ treatment. This decision effectively delayed his treatment for another year. Judge

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Major found that a jury needed to decide if Sabati was deliberately indifferent to Roberts’

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serious medical needs. Roberts didn’t file any objections; Sabati did. This Court reviews

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Judge Major’s findings de novo. 28 U.S.C. § 636.

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A jury can find a dentist liable for deliberate indifference to a serious medical need

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when the dentist delays treatment knowing the prisoner is in pain. Hunt v. Dental Dep't, 865

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F.2d 198, 200 (9th Cir. 1989). Here, it’s undisputed that Roberts had a serious medical need.

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The issue is whether a jury could infer deliberate indifference. It’s undisputed that Roberts

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told Sabati he had cavities causing pain, and Sabati knew Roberts’ treatment plan indicated

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he was six months overdue for fillings. Instead of ensuring Roberts’ cavities were filled,

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Sabati changed his plan by ordering a comprehensive examination, and downgrading the

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priority code assigned for treatment. As a result, Roberts wasn’t seen for another year. His

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cavities weren’t filled for another two years. The Court agrees with Judge Major that a jury

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could find Sabati’s deliberate indifference caused Roberts unnecessary suffering.

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Sabati raised several objections. First, she argues that Roberts didn’t need his

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treatment prioritized; if he did, then she would have assigned a higher priority code. Sabati

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says that’s undisputed. The Court disagrees. Her claim is disputed by circumstantial

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evidence that shows Sabati knew about Roberts’ outstanding cavities and pain, yet chose

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to make him wait even longer for treatment. Maybe Sabati’s decision wasn’t deliberate. But

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she can’t demand summary judgment because she says she didn’t do anything wrong. A

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juror, not a judge, needs to evaluate her on the stand and decide if they agree.

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Second, Sabati contends that she didn’t have Roberts’ full dental records, or enough

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time to verify his treatment plan, when she examined him. But Roberts told her he was in

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pain, had cavities long overdue for treatment, and his treatment plan confirmed this. A jury

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could find that was plenty of information without the full dental records or new x-rays. And

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it’s a vague argument anyway: Sabati doesn’t explain what other records she required, or

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why 15 minutes wasn’t sufficient to verify Roberts had cavities that needed filling.

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Third, Sabati argues she wasn’t Roberts’ assigned dentist. That means she wasn’t

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required to monitor whether Roberts obtained timely treatment. Fine. The Court doesn’t read

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Judge Major’s R & R to say that Sabati’s liable for failing to monitor if Roberts obtained

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treatment. But that doesn’t change the core issue: Sabati was Roberts’ dentist for the 15

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minutes she examined him. So it’s no excuse to say she wasn’t his regular doctor.

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Fourth, Sabati maintains that she didn’t assign a higher priority code to Roberts’

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treatment because she was recommending a comprehensive exam with his assigned

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dentist. She says that type of exam usually gets the priority code she assigned. That doesn’t

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do the trick either. A jury could find this wasn’t the usual case: a patient was in severe pain

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and had cavities long overdue for treatment. Viewing the evidence in the light most favorable

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to Roberts, a jury could infer Sabati’s conduct rose to deliberate indifference.

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Finally, Sabati objected that Roberts didn’t complain about her decision for almost a

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year. But that misses the point. The operative question is whether Sabati was deliberately

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indifferent to Roberts’ needs when she examined him. How long Roberts waited to file a

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grievance doesn’t impact whether Sabati violated his rights under the Eighth Amendment.

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She can argue that Roberts’ failure to complain confirms her position that he didn’t require

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immediate attention, but that’s an argument for the jury, not winning evidence that entitles

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her to summary judgment.

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Sabati argues that Hunt v. Dental requires a prisoner to show repeated complaints

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about his condition. She’s wrong. In Hunt, the Ninth Circuit reversed an order granting

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summary judgment because a dentist knew about a prisoner’s dental problems but didn’t

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provide prompt treatment. Hunt noted the prisoner repeatedly complained, but that wasn’t

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part of the holding. Instead, Hunt recognized that when a prisoner is experiencing pain, puts

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the dentist on notice, and has his treatment delayed, there’s enough evidence for deliberate

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indifference. Liability doesn’t turn on the amount of complaints. What’s more, Hunt found

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that a prisoner had a deliberate indifference claim for a delay of 3 months; Sabati delayed

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Roberts’ treatment by up to 12 months, and his treatment wasn’t completed for 48 months.

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See Hunt, 865 F.2d 198 (9th Cir. 1989).

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***
The Court finds the Report and Recommendation correct and adopts it. [Dkt. 75.]
Defendants’ summary judgment motion is granted in part, and denied in part. [Dkt. 61.]
IT IS SO ORDERED.
Dated: March 16, 2018
HONORABLE LARRY ALAN BURNS
United States District Judge

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