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Allen v. Cheung

United States District Court, E.D. California

November 26, 2014

COLUMBUS ALLEN, JR., Plaintiff,
v.
CHEUNG, DDS, Defendant

Columbus Allen, Jr., Plaintiff, Pro se, CALIPATRIA, CA.

For Cheung, Defendant: Jerome Martin Varanini, LEAD ATTORNEY, Law Offices of Jerome M. Varanini, Sacramento, CA.

FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE GRANTED (Doc. 63)

Jennifer L. Thurston, UNITED STATES MAGISTRATE JUDGE.

OBJECTIONS DUE WITHIN 30 DAYS

I. Procedural History

Plaintiff, Columbus Allen, Jr., is currently a state prisoner, but brought this action regarding actions that occurred while he was a pretrial detainee. Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on May 28, 2009 (Doc. 1) and is proceeding on his claims in the First Amended Complaint (Doc. 15) against Defendant Dr. Cheung (" Defendant") for denial of dental care in violation of the Eighth Amendment between September 27, 2008 and January 3, 2009 (Docs. 31, 34).

On August 5, 2014, Defendant filed a motion for summary judgment under Federal Rule of Civil Procedure (" Rule")[1] 56. (Doc. 63.) Plaintiff filed his opposition[2] (Doc. 67) to which Defendant replied (Doc. 69). The motion has been deemed submitted. L.R. 230(l). For the reasons discussed below, it is recommended that Defendant's motion be granted.

II. Summary Judgment Standard

Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted).

Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff " to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to " show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

However, in judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566, 182 L.Ed.2d 168 (2012). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. See Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

III. Plaintiff's Cognizable Allegations and Claims in the First Amended Complaint[3]

Plaintiff's First Amended Complaint states a claim against Defendant for allegedly constitutionally inadequate dental care. (Doc. 15.) Plaintiff's allegations against Defendant are found only on pages ten and eleven of the First Amended Complaint.

In the First Amended Complaint, Plaintiff alleges that during some events at the jail, a partial filling in his tooth #19 dislodged and pain ensued. (Id., at p. 10.) On July 13, 2008, Plaintiff alleged that he requested dental services as provided by Defendant. (Id. at pp. 10-11.) On July 24, 2008, Defendant offered to fill tooth #19 with which Plaintiff agreed and it was scheduled to take place on August 9, 2008. (Id., at p. 11.) On August 9th, Defendant allegedly recanted his offer to fill the tooth because of County and Sheriff Department practices, policies, and procedures. (Id.) Then Defendant offered to pull the tooth, which Plaintiff declined and insisted on the filling that Defendant previously offered. (Id.) Defendant's reasoning for denying treatment was " ephemeral and contradictory." (Id.) On September 24, 2008, Plaintiff did not know his trial or release date. On October 4, 2008, Defendant filled Plaintiff's #5 tooth, contrary to the policies he cited when he declined to fill tooth #19 on August 9, 2008. (Id.) Defendant now indicated that tooth #19 could not be removed because of its " root form" and it was " prime for root canal and crown." (Id.) Defendant did not explain why tooth #19 could/would not be filled as tooth #5 was. (Id.) Further delays of extracting tooth #19 were attributed to faulty equipment that Defendant claimed was needed to perform the procedure, but was " continuously rendered inoperable after several ineffective repair attempts. (Id.)

The Ninth Circuit found that Plaintiff's allegations that Defendant refused for months to treat Allen's serious dental problem based on a series of " ephemeral and contradictory" reasons, taken as true and drawing all inferences in Plaintiff's favor, established that Defendant purposefully delayed providing Plaintiff necessary dental treatment and therefore acted with deliberate indifference to Plaintiff's serious dental need. ( See Doc. 31. USCA Memo. citing Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989); Clement v. Gomez, 298 F.3d 898, 904-05 (9th Cir. 2002).)

A. Eighth Amendment

To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must first " show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)).

The existence of a condition or injury that a reasonable doctor would find important and worthy of comment or treatment, the presence of a medical condition that significantly affects an individual's daily activities, and the existence of chronic or substantial pain are indications of a serious medical need. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (citing McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)) (quotation marks omitted); Doty v. County of ...


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