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Fosselman v. Tilton

July 14, 2008

JEROME FOSSELMAN, CDCR #H-66012, PLAINTIFF,
v.
JAMES TILTON, SECRETARY OF THE CDCR; VICTOR ALMAGER, WARDEN; CANDIE COOK, MEDICAL APPEALS COORDINATOR; DR. CUMMINGS, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING DEFENDANTS' MOTION TO DISMISS [Doc. No. 16] PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6)

I. PROCEDURAL BACKGROUND

Jerome Fosselman ("Plaintiff"), a prisoner currently incarcerated at Centinela State Prison ("CEN") in Imperial, California, is proceeding pro se and in forma pauperis in this matter with a Complaint, filed on August 23, 2007, pursuant to 42 U.S.C. § 1983. Defendants Tilton, Almager, Cook and Cummings have filed a Motion to Dismiss Plaintiff's Complaint for failing to state a claim pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 16-1]. Plaintiff filed his Opposition to Defendants' Motion on June 3, 2008, to which Defendants filed their Reply on June 13, 2008. The matter was set for hearing without oral argument and submitted on the papers for disposition pursuant to Local Rule 7.1.d.2.

II. FACTUAL ALLEGATIONS

Plaintiff was initially housed at North Kern State Prison ("NKSP") on November 29, 2005 where he was given a dental examination. (See Compl. at 3.) During this examination, Plaintiff asked the NKSP dentist to repair a cap and replace some fillings in his teeth. (Id.). Because he was to be transferred, Plaintiff was told to wait until he was received at his new institution to have these dental repairs made. (Id.)

On January 26, 2006, Plaintiff was transferred to CEN. (Id.) Plaintiff was given a medical examination on February 28, 2006 at which time he asked the nurse when he would be seen by the dentist and she responded by laughing. (Id.) Upon Plaintiff's review of the prison's regulations, he believed that he should have been provided with a dental examination within fourteen (14) days upon arrival at CEN.*fn1 (Id.)

After waiting several weeks, Plaintiff filed an administrative grievance on May 5, 2006, nearly three months after arriving at CEN. In this administrative grievance, Plaintiff requested to be examined by a dentist and provided treatment for the issues he raised in his examination at NKSP. (Id. at 3-4.) Defendant Cook responded to Plaintiff's administrative grievance with a denial and informed Plaintiff that he was not seen by a dentist upon arrival at CEN because Plaintiff "did not present any dental concerns during [Plaintiff's] arrival health screening" on January 26, 2006. (Id. at 4.) Plaintiff was told by Defendant Cook that if he wanted dental services Plaintiff needed to "complete and submit a CDC 7362 Health Care Services Request," after which Plaintiff would be "ducated" in the chronological order the request was received. (Id.)

Plaintiff filed an appeal to Cook's response in which he stated that Title 15 required that all incoming inmates be examined by a dentist within fourteen days "following transfer from a reception center" per CAL. CODES REGS., Title 15 § 3355.1(b). As a result of the filing of the administrative grievance appeal, Plaintiff was examined by Dr. Cummings on July 13, 2006. (Id. at 5.) Plaintiff informed Dr. Cummings that he had a toothache in "tooth #19." (Id.) Dr. Cummings noted in Plaintiff's "Dental Progress Notes" that "#19 HX of SCC, SCC became defective and was repaired with a large resin which is now defective, needs new SCC." (Id.) Plaintiff claims Dr. Cummings assured him that he would receive a new cap for the tooth on the next visit by Dr. Cummings to "Facility D." (Id. at 5-6.)

Plaintiff later receive a response to his First Level administrative grievance appeal which stated, in part, "Dr. Cummings conducted a dental triage visit on you on 7-13-06 and found that your plate needs some repair." (Id. at 6.) However, the response to Plaintiff's grievance further stated that Dr. Cummings indicated that Plaintiff's dental condition was a "non-emergent" issue and accordingly, he would need to follow the procedure for routine dental care. Plaintiff was also admonished for using the grievance procedure to "circumvent the normal process to access health care services through the appeal process" in the appeal response signed by Defendant Cook and S. Walia, M.D.*fn2 (Id.)

Plaintiff submitted an appeal of this response to Defendant Almager who was the Institutional Appeals Coordinator at CEN. (Id. at 7.) Plaintiff indicated in this appeal to Defendant Almager that Dr. Cummings had already determined that he was in need of dental care and he should not have to continue submitting additional documentation to receive the dental work. (Id.) In addition, it took nearly seven months for Plaintiff to receive a dental examination when according to the CDCR's own regulations it should have occurred within fourteen days. (Id.) Defendant Cook refused to prioritize the replacement of Plaintiff's defective cap.

Plaintiff filed an appeal to the Chief of Inmate Appeals on September 4, 2006. (Id.) Plaintiff explained in this administrative grievance appeal that the cap on his tooth was broken causing pain every time he ate food and he feared losing his tooth. (Id. at 8-9.) This appeal was denied by the Director's Level on November 21, 2006. (Id. at 9.) In this response it was stated, in part, that "CEN dental staff have provided [Plaintiff] with appropriate dental intervention as defined by CCR 3354." (Id.) On December 1, 2006, Plaintiff received a ducat to come to the Facility D clinic where he was examined by Dr. Arturo Cervantes.*fn3 (Id. at 10.) Dr. Cervantes, a dentist, "removed the defective cap, filed the tooth down some and placed a new cap on the tooth" but Plaintiff maintains that the repaired cap was still "sensitive to hot and cold food and water." (Id.)

Three weeks later, Plaintiff returned to the Facility D Clinic and informed the Medical Technical Assistant ("MTA") that he needed to see the dentist because his toothache was getting worse. (Id. at 10.) Plaintiff was initially seen by the Dental Assistant but informed that he could not be treated on that day because he had to "report back to his housing unit to be counted." (Id.) However, the dental assistant informed Plaintiff that she would leave pain pills for him at the "MTA window" after dinner to deal with his toothache but Dr. Cervantes could not return to the Facility D clinic until January 2007. (Id.) Plaintiff returned to the clinic to pick up the pain medication but it was not there. (Id. at 11.) Plaintiff received another ducat to see Dr. Cervantes on January 8, 2007, at which time Dr. Cervantes told Plaintiff his tooth could not be saved and as a result, it had to be pulled. (Id.) Plaintiff told Dr. Cervantes to pull the tooth. (Id.)

III. DEFENDANTS'MOTION TO DISMISS PER ...


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