Martin v. Munsey et al
Filing
97
OPINION AND ORDER. Defendants' motion for summary judgment (ECF # 82 ) is GRANTED, and this case is dismissed with prejudice. The court further certifies that any appeal from the order or judgment dismissing this case would be frivolou s and not taken in good faith. See 28 U.S.C. § 1915(a)(3). Signed on 2/26/2019 by Magistrate Judge Youlee Yim You. ***11 PAGE(S), PRINT ALL**(Shawn Martin, Prisoner ID: 13556240) (pvh) Modified on 2/26/2019 to correct print instructions (dsg).
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PENDLETON DIVISION
SHAWN MICHAEL MARTIN,
Plaintiff,
Case No. 2:17-CV-01299-YY
v.
OPINION AND ORDER
D. MUNSEY, R. GEORGE, J. THAYER, and
B BOGARDUS,
Defendants.
YOU, Magistrate Judge:
Pro se plaintiff Shawn Michael Martin brings this action under 42 U.S.C. § 1983 alleging
that two dentists and two dental assistants employed by the Oregon Department of Corrections
(“ODOC”) were deliberately indifferent to his serious medical needs in violation of the Eighth
Amendment. Compl. ¶ 15, ECF #2. He alleges a two-month delay in dental care constituted a
wanton infliction of unnecessary pain. He seeks injunctive relief and damages. Defendants have
moved for summary judgment (ECF #82).1 For the reasons set forth below, defendants’ motion
is granted.
1
All parties have consented to allow a magistrate judge to enter final orders and judgment in this
case in accordance with FRCP 73 and 28 USC § 636(c).
1 – OPINION AND ORDER
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FRCP
56(a). The moving party has the burden of establishing the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “When judging the evidence
at the summary judgment stage, the district court is not to make credibility determinations or
weigh conflicting evidence and is required to draw all justifiable inferences in a light most
favorable to the nonmoving party.” Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment,” the
“mere existence of a scintilla of evidence in support of the plaintiff’s position [is] insufficient
. . . .” Id. at 252, 255. “Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
BACKGROUND
Plaintiff entered ODOC custody on February 23, 2017. Decl. of Dr. Gregory Shook,
D.M.D. ¶ 3 (“Shook Decl.”), ECF #83. He was scheduled for a dental intake exam to determine
the status of his dental needs. However, plaintiff was almost immediately placed in the
Disciplinary Segregation Unit (“DSU”) for engaging in disrespectful and disobedient conduct.
Decl. of Shawn Martin ¶ 19 (“Martin Decl.”), ECF #86; Plaintiff’s Statement of Disputed
Factual Issues (“Pl.’s Fact Statement”), Ex. 40, ECF#91-1 (copy of ODOC Misconduct Report
describing plaintiff’s behavior).
2 – OPINION AND ORDER
ODOC takes additional security precautions at the dental clinic for patients housed in
DSU, including providing two correctional officers during dental appointments for the security
of the dentists and their staff. Shook Decl. ¶¶ 7-8. On March 3, 2017, a nonparty dental
assistant rescheduled plaintiff’s exam because there were not enough correctional officers
available to accompany him to the dental clinic. Id. ¶ 8 (naming dental assistant A. Kidwell).
On March 10, 2017, plaintiff sent an Inmate Communication Form (“grievance”) to the
dental clinic complaining that one of the teeth under the bridge in his mouth was causing him
pain, that the bridge had come loose, and that there was a foul odor coming from the area with
the bridge. Id. ¶ 9. Plaintiff did not request pain medication in this grievance, but he did request
dental floss. Shook Decl., Ex. 1, at 16. The dental clinic responded that plaintiff’s dental intake
exam had been scheduled. Id. Plaintiff’s appointment was scheduled for March 15, 2017, but
inmates are not told when they have appointments as a security measure. Shook Decl. ¶ 15.
The dental clinic took x-rays of plaintiff’s mouth on March 14, 2017, and a nonparty
dentist, Dr. Stephanie Swyter, D.M.D., performed plaintiff’s dental intake exam the next day. Id.
¶¶ 9-10. Dr. Swyter did not identify any conditions that called for prompt or urgent attention
during her examination. Id. ¶ 12.
Plaintiff submitted another grievance on March 29, 2017. Id. ¶ 15. ODOC staff
responded by advising plaintiff that he had an appointment to be seen by the dental clinic. Id.
Plaintiff submitted another grievance on April 12, 2017, and ODOC responded about two weeks
later explaining his transfer to a new facility had caused a delay. Pl.’s Fact Statement, Ex. 20
(Grievance Response dated April 27, 2017). ODOC notified the receiving facility of plaintiff’s
need for dental care. Id.
3 – OPINION AND ORDER
On April 18, 2017, plaintiff reported to a triage nurse that there was no change in his
condition. Shook Decl. ¶ 17. The triage nurse also determined that plaintiff’s condition did not
require urgent attention. Id.
Dr. David Miller, D.M.D., examined plaintiff on May 1, 2017. Plaintiff complained of
tooth pain. Id. ¶ 20. Dr. Miller’s chart notes show that plaintiff had many missing teeth, a
fractured porcelain bridge, significant decay in teeth supporting the bridge, moderate gum
disease, a loose abutment crown, two diseased teeth with poor restorability prognosis (numbers 2
and 7), and palpation testing that was within normal limits. Id. Plaintiff indicated he would
prefer a root canal to extraction on teeth numbers 2 and 7 and would submit paperwork for
approval to the Therapeutic Level of Care Committee. Id.
The committee denied plaintiff’s request for a root canal, citing plaintiff’s high rate of
decay and poor oral hygiene. Id. ¶ 21. Instead, the committee recommended extraction and
approved the fabrication of partial dentures following the extractions. Pl.’s Fact Statement, Ex.
4.
Dr. Miller discussed the committee’s decision with plaintiff on May 10, 2017, and
plaintiff agreed to the extractions. Shook Decl. ¶ 22. On May 10, 2017, Dr. Miller extracted two
teeth and performed four additional extractions on June 14, 2017. Id. ¶ 23. Plaintiff was given
an anesthetic during the procedures, and Norco (hydrocodone), Roxicet (oxycodone and
acetaminophen), and Ibuprofen for pain afterwards. Id. ¶¶ 22-23. Additionally, ODOC always
made Tylenol and Ibuprofen available to plaintiff. Id. ¶ 24.
The record also reflects that plaintiff took the pain killer Gabapentin before, during, and
after his dental treatments. Id. ¶ 6. Nurse Practitioner Linda Gruenwald (“Gruenwald”)
prescribed plaintiff Gabapentin to manage chronic hip pain when plaintiff entered ODOC
4 – OPINION AND ORDER
custody in late February 2017. Id. Gruenwald prescribed 800 mg of Gabapentin twice per day
for 15 days and, when that was insufficient, increased the dosage to three times per day. Id.
Plaintiff also declares he secured and used illegal narcotics to quell the pain. Martin
Decl. ¶¶ 10, 24. Nevertheless, plaintiff declares that from March 23, 2017, until the extractions
on May 10, 2017, his “tooth remained in constant paint. The pain never went away. At times it
wasn’t as severe as other times. However, the pain never went away.” Martin Decl. ¶ 10; see
also id. ¶¶ 2, 12 (describing intermittent pain). Plaintiff claims he complained to various ODOC
staff about the pain. Id. ¶¶ 3, 5, 23.
DISCUSSION
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane
ones, and it is now settled that ‘the treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the Eighth Amendment.’” Suchodolski
v. Peters, No. 1:17-cv-01113-AC, 2018 WL 4926300, at *9 (D. Or. Oct. 10, 2018) (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
Punishment must comport with “the evolving standards of decency that mark the progress
of a maturing society.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). “[T]o state a
cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. “It is only such
indifference that can offend ‘evolving standards of decency’ in violation of the Eighth
Amendment.” Id.
5 – OPINION AND ORDER
“To establish an Eighth Amendment violation, a prisoner ‘must satisfy both the objective
and subjective components of a two-part test.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004) (quotation marks and citation omitted). “First, the alleged deprivation must be, in
objective terms, ‘sufficiently serious.’” Sawyer v. Cole, No. 3:10-CV-00088-RCJ, 2012 WL
6210039, at *2 (D. Nev. Dec. 12, 2012), aff'd, 563 F. App’x 589 (9th Cir. 2014) (citing Farmer,
511 U.S. at 834). “Second, the prison official must ‘know of and disregard an excessive risk to
inmate health or safety.’” Id. (citing Farmer, 511 U.S. at 837).
“Because society does not expect that prisoners will have unqualified access to health
care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle, 429 U.S.
at 103-104). “A medical need is serious if failure to treat it will result in ‘significant injury or the
unnecessary and wanton infliction of pain.’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th
Cir. 2014) (en banc) (quotation marks and citation omitted). Examples of serious medical needs
include “[t]he existence of an injury that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain.” McGuckin v.
Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).
With respect to the second, subjective component, “a prison official may be held liable
under the Eighth Amendment for denying humane conditions of confinement only if he knows
that inmates face a substantial risk of harm and disregards that risk by failing to take reasonable
measures to abate it.” Farmer, 511 U.S. at 835. Otherwise stated, “to violate the Eighth
Amendment, a prison official must have a ‘sufficiently culpable mind.’” Guy v. Kimbrell, No.
CIVS03-1208-JAM-CMKP, 2008 WL 2774184, at *3 (E.D. Cal. June 27, 2008), report and
6 – OPINION AND ORDER
recommendation adopted, 2008 WL 3200855 (E.D. Cal. Aug. 7, 2008) (quoting Farmer, 511
U.S. at 834).
“However, an inadvertent or negligent failure to provide medical care does not constitute
deliberate indifference.” Brown v. Perez, No. EDCV 14–2421–CJC (JEM), 2015 WL 2153451,
at *4 (citing Estelle, 429 U.S. at 105–06). A “difference of medical opinion . . . [is] insufficient,
as a matter of law, to establish deliberate indifference.” Id. (citation and quotations omitted).
“[N]or does a dispute between a prisoner and prison official over the necessity for or extent of
medical treatment amount to a constitutional violation.” Toguchi, 391 F.3d at 1058.
A delay in treatment in and of itself does not constitute deliberate indifference. Wood v.
Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). “[T]he delay must have caused substantial
harm.” Id. It is well established that a delay in non-emergency dental treatment lasting up to
several months that has caused no additional physical damage and where the inmate has access
to pain medication and temporary remedies does not rise to the level of a constitutional violation.
See, e.g., Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (recognizing that delay in
providing a prisoner with dental treatment, standing alone, does not constitute an Eighth
Amendment violation); Banks v. Umatilla Cty. Jail, No. 2:16-CV-00284-TC, 2018 WL 2376751,
at *3 (D. Or. Mar. 26, 2018), findings and recommendations adopted, 2018 WL 2376092 (D. Or.
May 24, 2018) (finding no significant harm where inmate was provided pain medication and salt
water rinses during his seven-week wait to receive dental care). Even conduct resulting in short,
periodic delays in the receipt of pain medication is not unconstitutional. Estrada v. Sayre, No. C
12-0592 LHK (PR), 2014 WL 3728161, at *8 (N.D. Cal. July 28, 2014), aff’d, 635 F. App’x 378
(9th Cir. 2016) (discussing back pain) (cited pursuant to Ninth Circuit Rule 36-3).
7 – OPINION AND ORDER
Here, defendants move for summary judgment on the second, subjective component of
plaintiff’s deliberate indifference claim. Mot. Summ. J. 6. Even viewing the evidence in the
light most favorable to plaintiff, the record does not support a reasonable inference that
defendants knew of a substantial risk of harm and disregarded it.
A.
Subjective Intent of Dentist Defendants
Plaintiff names two dentists as defendants, Dr. Jeff Thayer, D.M.D. (“Dr. Thayer”) and
Dr. Brian Bogardus, D.M.D. (“Dr. Bogardus”). Plaintiff claims that they were aware of his
complaints of pain but refused to see and treat him, and that their refusal constituted a wanton
infliction of unnecessary pain.
To support this assertion, plaintiff points to the fact that Dr. Miller observed decay near
the pulp and crestal bone on May 1, 2017, several days before he extracted plaintiff’s teeth.
Shook Decl., Ex. 1, at 7 (chart note by Dr. Miller indicating “[d]ecay appears near the pulp and
near the crestal bone”). Dr. Thayer admits a tooth that needs to be extracted or treated with a
root canal usually causes pain. Pl.’s Fact Statement, Ex. 37 (Thayer, Ans. Interrog. No. 9).
However, as Dr. Bogardus further explained, whether a decaying tooth will cause pain depends
on several factors including the 1) depth of decay, and 2) vitality of the pulp. Id., Ex. 39
(Bogardus, Ans. Interrog No. 9). “Every case is different.” Id. Moreover, a toothache is not
necessarily considered a dental emergency: “It depends on several factors.” Id., Ex. 50
(Bogardus, Resp. Request Admis. Nos. 2, 3, 6, 7) (explaining that it is the role of the dentist to
determine whether there is a dental emergency). Indeed, plaintiff does not assert that Dr. Miller
ever told him that his condition required emergency care.
In fact, no dentist who examined plaintiff found his condition required urgent attention.
Dr. Swyter, whom plaintiff has not named in this case, performed plaintiff’s dental intake exam.
8 – OPINION AND ORDER
She determined that while plaintiff required non-emergency dental care, he presented with no
urgent treatment needs. Shook Decl. ¶ 12. Further, none of ODOC’s security or medical staff
observed that plaintiff was in unbearable pain or required urgent care. After reviewing plaintiff’s
dental and treatment records, ODOC’s dental director declared that “[t]he amount of decay and
the state of [plaintiff’s] oral hygiene at intake into ODOC did not require prompt or urgent
extraction of these teeth and did not cause [plaintiff’s] dental condition to worsen by the time of
the extraction on May 10, 2017.” Id. ¶ 25.
More importantly, though, there is no evidence that Dr. Thayer and Dr. Bogardus knew
of plaintiff’s condition and refused to see him. Plaintiff had been scheduled to see the dental
clinic on April 17, 2017, but that appointment was canceled because Dr. Thayer was sick. Pl.’s
Fact Statement, Ex. 36 (D. Munsey, Ans. Interrog. Nos. 1, 3, & 4). While Dr. Thayer knew
plaintiff had requested to see a dentist for tooth pain, there is no evidence that Dr. Thayer knew
plaintiff had an appointment and called in sick with the intention of prolonging plaintiff’s pain.
Id., Ex. 37 (Thayer, Ans. Interrog. No. 10) (indicating Dr. Thayer called in sick on April 17,
2017, and was not aware plaintiff had an appointment that day). Further, there is no evidence
that Dr. Bogardus even knew who plaintiff was during this time. Id., Ex. 39 (Bogardus, Resp.
Request Admis. Nos. 2, 3, 6, 7). Therefore, plaintiff has failed to prove the requisite subjective
intent for either dentist to establish deliberate indifference.
B.
Subjective Intent of Dental Assistant Defendants
Plaintiff also names two dental assistants as defendants: Dustie Munsey and Robyn
George. Along with other staff, they shared the responsibility of making dental appointments for
inmates, including appointments for dental emergencies. Pl.’s Fact Statement, Ex. 36 (Munsey,
Resp. Interrog. No. 9); id., Ex. 38, (R. George, Resp. Request Admis. No. 2). Plaintiff alleges
9 – OPINION AND ORDER
that they failed to schedule an emergency dental appointment for him and that this caused him to
remain in severe pain. Martin Decl. ¶ 18.
As described above, Dr. Swyter determined that plaintiff’s condition did not require
prompt or urgent attention. The dental assistant defendants complied with procedures for
scheduling non-emergency dental care, per Dr. Swyter’s recommendation. Further, the dental
assistants declare that plaintiff’s dental appointment on April 17, 2017, was canceled because Dr.
Thayer called in sick. Pl.’s Fact Statement, Ex. 36 (Munsey, Ans. Interrog. Nos. 1, 3, & 4).
Plaintiff was housed in DSU and there were not enough correctional officers available to
accompany him to a dental appointment earlier. These facts do support an inference that either
dental assistant acted with deliberate indifference to plaintiff’s pain.
This case is unlike those where courts have found that the plaintiffs established the
subjective component of deliberate indifference. For example, in Hunt v. Dental Dept., the
defendants were aware of the plaintiff’s deteriorating dental conditions, but “failed to take any
action to relieve his pain” and the delay in treatment resulted in permanent damage to plaintiff’s
teeth. Id. (emphasis added). 865 F.2d 198, 200 (9th Cir. 1989). Here, plaintiff was given
Gabapentin, Tylenol, and Ibuprofen to manage his pain while waiting for treatment, and the
delay did not worsen his condition or result in any permanent damage that could have been
avoided absent the delay—the problem teeth had to be extracted regardless. Shook Decl. ¶ 25.
Even viewing the evidence in the light most favorable to plaintiff, no reasonable jury could find
that the delay constituted an “unnecessary and wanton infliction of pain.” Plaintiff’s pain was
not wantonly disregarded in the sense that anyone purposely withheld care that could have
immediately been provided. Rather, the delay was caused by plaintiff’s poor behavior that
10 – OPINION AND ORDER
caused him to be placed in DSU, the resulting necessity of providing two corrections officers to
accompany him to an appointment, and Dr. Thayer’s illness.
Because plaintiff has failed to demonstrate the deprivation of a constitutional right, the
court need not reach the remaining issues.2
ORDER
For the reasons set forth above, defendants’ motion for summary judgment (ECF #82) is
GRANTED, and this case is dismissed with prejudice. The court further certifies that any appeal
from the order or judgment dismissing this case would be frivolous and not taken in good faith.
See 28 U.S.C. § 1915(a)(3).
DATED February 26, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge
2
To the extent plaintiff asserts new allegations against the ODOC law library, it is well settled
that a response to a motion for summary judgment is not a proper vehicle for asserting new
claims or adding new defendants. E.g., Perez v. Vitas Healthcare Corp., 739 F. App’x 405, 407
(9th Cir. 2018) (cited pursuant to Ninth Circuit Rule 36-3); Wasco Prod., Inc. v. Southwall
Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“summary judgment is not a procedural second
chance to flesh out inadequate pleadings”).
11 – OPINION AND ORDER
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