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Thomas v. Antipov

United States District Court, E.D. California

February 12, 2015

ANTIPOV, et al., Defendants.


EDMUND F. BRENNAN, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges Eighth Amendment claims of deliberate indifference to serious medical needs against each remaining defendant. ECF No. 45. Defendants have filed a motion for summary judgment, ECF No. 112-2, and plaintiff filed a counter-motion for summary judgment. ECF No. 122. Proposed findings and recommendations were issued on December 19, 2014, recommending that summary judgment be granted as to defendants Grinde, Ma, Maciel, McGee, and Park, but denied as to defendants Antipov and Downie, and further recommending that plaintiff's counter-motion for summary judgment be denied as to all defendants. Defendants timely filed objections, arguing that the court should grant their motion for summary judgment as to defendant Downie. ECF No. 127. In light of defendants' objections, the December 19, 2014 findings and recommendations are vacated and the issues raised are addressed in the following amended findings and recommendations. Specifically, the recommendation is amended to include the recommendation that defendant Downie be granted summary judgment on the allegations regarding Downie's prescription of pain medication. However, the recommendation as to all other claims remains the same.

Therefore, for the reasons set forth below, notwithstanding defendants' Objections, it is recommended that (1) defendants' motion for summary judgment be granted as to defendants Grinde, Ma, Maciel, McGee, and Park, but granted in part and denied in part as to defendant Downie and denied as to defendant Antipov, and (2) plaintiff's counter-motion for summary judgment be denied as to all defendants.


This action proceeds on plaintiff's verified second amended complaint filed May 7, 2012. ECF No. 45 ("SAC") at 1, 16.[1] Plaintiff alleges that defendants Antipov, Downie, Grinde, Ma, Maciel, McGee, and Park were deliberately indifferent to his serious medical needs before, during, and after the extraction of his wisdom teeth. Id. at 1, 12. Antipov is an oral surgeon who performed the extractions while working for the California State Prison, Sacramento as an independent contractor. ECF No. 112-9 ("Antipov Decl.") at ¶ 1. Downie, Park, and Maciel are dentists. SAC at 3. Ma is a physician. Id. McGee and Grinde are registered nurses. Id.

Defendant Antipov removed plaintiff's four wisdom teeth on August 3, 2010. Id. at 4. According to plaintiff, he informed Antipov before the extractions that he needed to be pre-medicated with antibiotics before every dental procedure because of his heart murmur, but neither the dental staff nor Antipov had plaintiff's medical files on hand to confirm plaintiff's contention. Id. [2] Before the extraction, plaintiff was given a Dental Health Record form to complete that asked him to list all medication allergies. Pl.'s Decl. at ¶ 10 (ECF No. 122 at 76). Plaintiff signed this form before it was completed because the nurse assisting him "made it confusing." Id. The nurse wrote "Motrin" before returning the form to plaintiff and spelling "Tylenol" and "Penicillin" for him to add to the form. Id. Plaintiff says it was difficult for him to understand the nurse, who took the form back out of frustration, saying she would add Aspirin and Naproxen. Id. Nevertheless, though the form he signed on the day of the extraction listed only an allergy to Motrin, plaintiff claims that his Unit Health Record "has [had] allergies to Tylenol, Penicillin, Aspirin, [and] Motrin written on it since [his] arrival to prison."[3] Id. at ¶ 30 (ECF No. 122 at 81).

Antipov injected plaintiff with local anesthesia before the extraction. Id. at ¶ 11 (ECF No. 122 at 76). Plaintiff claims that his heart began to beat rapidly and he experienced cold chills moments later. Id. Plaintiff describes the procedure as protracted and problematic. He asserts that Antipov showed no concern for plaintiff's well-being, as he left "mouth hinges"[4] in plaintiff's mouth for the entire two-hour procedure and failed to prescribe necessary antibiotics and pain medication. SAC at 4. Plaintiff claims that Antipov struggled to remove plaintiff's left and lower right wisdom teeth, and he became "frustrated to [the] point that he applied immense pressure, that [plaintiff's] whole head was being pulled to and fro." Id. Plaintiff claims that Antipov ignored plaintiff's complaints of pain, Pl.'s Decl. at ¶ 12 (ECF No. 122 at 76-77), and that because the procedure took longer than expected, plaintiff was rushed out of the dental office without receiving any pain medication, SAC at 4. Plaintiff also asserts that Antipov later stated that the surgery was difficult. Pl.'s Decl. at ¶ 86 (ECF No. 122 at 91).

Later on the day of the extractions, plaintiff experienced extreme pain, difficulty breathing, a rapid heartbeat, chest pain, and a fever. Id. Correctional officers took plaintiff to the prison medical facility after he suffered a seizure. SAC at 5. There, he spoke with defendant McGee, a nurse, who filled out and signed a form indicating that plaintiff's pain level was ten out of ten. Pl.'s Decl. at ¶ 71 (citing Ex. E to Pl.'s Opp'n). McGee contacted the on-call doctor, but allegedly was openly disrespectful towards plaintiff. SAC at 5. Plaintiff asserts that he had a temperature of 102.5 degrees, but McGee did not offer any medical assistance. Id. He further claims that McGee "jammed her fingers down [plaintiff's] throat in search of" gauzes that plaintiff might have swallowed during his seizure. Id. Though McGee could not locate any gauzes, two correctional officers were able to. Id. According to plaintiff, McGee's actions caused him great pain. Id. When the on-call doctor arrived, he observed plaintiff's state and contacted Burns, a dentist. Id. at 5-6.[5] Upon learning that plaintiff had not received any pain medication after the extraction, Burns provided liquid pain medication, prescribed liquid Vicodin, scheduled plaintiff for an appointment with a prison dentist the following morning, and sent plaintiff to the Outpatient Housing Unit ("OHU") to be monitored throughout the night. Id. at 6.

At OHU, plaintiff met with defendant Ma, the on-call doctor. Id. But plaintiff claims that instead of examining or treating plaintiff, Ma left him in the cell suffering. Id. When the pain became unbearable, plaintiff banged on his door and requested the liquid Vicodin that Burns had ordered. Id. An hour later, a nurse informed plaintiff that the OHU did not carry liquid Vicodin, and tried to give plaintiff the Tylenol #3 that Ma had ordered. Id. Plaintiff told both Ma and the nurse that he could not take Tylenol, Aspirin, Penicillin, Naproxen, Ibuprofen, or Motrin. Id. Plaintiff, without having seen a dentist in OHU, was sent back to his cell at approximately 2:00 p.m. the following day. Id. at 7.

Plaintiff was not seen by a dentist until August 10. Id. Throughout the preceding week plaintiff was taking medication that he assumed he was not allergic to, as he had informed Ma of his medication allergies. Id. The Tylenol #3 and Penicillin were "crushed down into water" and plaintiff "did not know that Liquid T-3 stood for Tylenol #3...." Pl.'s Decl. at ¶¶ 34, 35 (ECF No. 122 at 82). But plaintiff was having an allergic reaction to the medication, experiencing chest and heart pain, rashes, a swollen face, hives, diarrhea, bloody stool, continuous vomiting, migraines, ear aches, fatigue, difficulty breathing, and dehydration. SAC at 7. The dentist appointment on August 10 was not for these issues or even a follow-up for his surgery, but rather a scheduled tooth cleaning. Id. Defendant Downie, a dentist, retrieved plaintiff's medical file upon observing plaintiff's swollen face. Id. Plaintiff informed Downie of the "severe pain [he] was in, how [he] was unable to chew nor swallow any food since before the oral surgery, and all the stomach pain [he] had due to this." Pl.'s Decl. at ¶ 41 (ECF No. 122 at 83). Downie discontinued Ma's prescription and said that he would prescribe pain medication that plaintiff could tolerate. SAC at 7. Downie also said that he would have plaintiff return in a week. Id.

Later on the night of August 10, plaintiff received a bag of Tylenol that defendant Maciel had prescribed. Id. Plaintiff returned the medication to the medical technician and informed her of his "condition." Id. But cf. Pl.'s Decl. at ¶ 42 (ECF No. 122 at 83) (stating that he "took this medication for a couple of days not knowing it was Tylenol."). Plaintiff claims Maciel did not check plaintiff's dental health history records to see what medications plaintiff was allergic to. Pl.'s Decl. at ¶ 100 (ECF No. 122 at 93).

Plaintiff continued to experience extreme pain after August 10. Id. Every night, prison staff would provide plaintiff with a bag of Tylenol, and plaintiff would inform them that he was allergic to that medication. SAC at 8. Because plaintiff did not receive any other medication, he was "forced to either take the medication that [he] was allergic to... or just suffer through it all, in hopes of getting better...." Id. On August 17, a nurse became very concerned for plaintiff's health. Id. Upon learning of plaintiff's medication allergies, the nurse made a bold notation in plaintiff's medical file. Id. The nurse also scheduled plaintiff for an appointment with the dentist the following morning. Id.

But plaintiff did not meet with a dentist until August 20. Id. Upon seeing plaintiff's condition and weight loss on that date, Downie prescribed Salsalate for plaintiff's pain. Id. Downie did not prescribe anything for plaintiff's swollen face. Id. Downie did not examine plaintiff's mouth because it was too painful for plaintiff to open his mouth. Pl.'s Decl. at ¶ 103 (ECF No. 122 at 93). After informing Downie that he had not eaten anything since the extraction, plaintiff requested that Downie place him on a liquid diet. SAC at 8. Downie replied that it was not his department, but rather medical, that determines diet. Id. at 9. Medical, however, told plaintiff that the dental department is responsible for that determination. Id. Plaintiff was not placed on a liquid diet. Id. Because of the pain, plaintiff eventually took the Salsalate that Downie prescribed. Id. Plaintiff also had an allergic reaction to that medication. Id. Upon learning that Salsalate has Aspirin in it, plaintiff requested another medication. Id.

Plaintiff, "without receiving any pain medication, " passed out on August 24. Id. He was taken to the medical facility, where the nurse called defendant Park, a doctor. Park prescribed Morphine for the night and scheduled a dentist appointment for plaintiff. Id.

On August 25, plaintiff had an appointment at San Joaquin General Hospital concerning his heart murmur. Id. at 10. Because of that appointment, plaintiff was not able to attend the dental appointment that Park had ordered. Id. Upon returning to the prison's A-facility to be checked back into the institution, defendant Grinde, a nurse, approved plaintiff's return to B-facility without any treatment. Id. Plaintiff's face was severely swollen, and he expressed to Grinde that he was in severe pain. Id. ; Pl.'s Decl. at ¶ 104 (ECF No. 122 at 93).

At B-facility, plaintiff refused to go back into his cell until he received treatment for his pain. SAC at 9. After plaintiff argued with medical staff for fifteen minutes, Grinde reported to B-facility. Id. Grinde stated that he could not do anything for plaintiff because plaintiff was just trying to get drugs. Id. When Grinde stated that he would provide Tylenol #3, plaintiff informed Grinde that he was allergic to that and other medications. Id. Grinde called Park, who again prescribed Morphine for the pain. Id. at 11. But Park also prescribed Tylenol #3 and Penicillin, despite knowing of plaintiff's allergies to those medications. Id. After plaintiff argued with both Grinde and Park, Park also prescribed Erythromycin for plaintiff's infection. Id.

On August 26, plaintiff met with Maciel. Id. Maciel prescribed plaintiff liquid Methadone, continued the Erythromycin treatment, ordered plaintiff a liquid diet, and scheduled plaintiff for an appointment with the oral surgeon. Id. Maciel then prescribed a stronger antibiotic and called plaintiff in everyday to receive an oral rinse to treat the infection. Id. at 12.

Plaintiff is still "suffering from the effects of this whole ordeal, " as his jaw unhinges when he chews and hurts when he speaks. SAC at 12. Specifically, plaintiff claims that Antipov's extraction caused "TMJ, a dislocated disk in [plaintiff's] jaw and a deviation" in plaintiff's jaw. Pl.'s Decl. at ¶ 76 (ECF No. 122 at 89). Additionally, his heart condition "worsened tremendously" as a direct result of the extraction and the medical care he received afterwards, SAC at 12, and he lost weight as a result of not being able to eat from August 3 until the first week of September, Pl.'s Decl. at ¶ 13 (ECF No. 122 at 77).[6]


Summary judgment is appropriate when 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). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.

The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).

A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See, e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 ("[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.'"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, summary judgment must be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.

Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air, " and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary judgment.

Concurrent with their motion for summary judgment, defendants advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 112-1; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).[7]


A. Defendants' Motion for Summary Judgment

Defendants argue that they are entitled to summary judgment because (1) plaintiff's opposition does not comply with Local Rule 260(b), (2) plaintiff has not produced any evidence of any defendant's deliberate ...

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