United States District Court, E.D. California
FINDINGS AND RECOMMENDATION, RECOMMENDING THAT
DEFENDANT NAVASARTIAN'S MOTION FOR SUMMARY JUDGMENT BE
GRANTED (ECF No. 26.)
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Elias (“Plaintiff”) is a state prisoner
proceeding pro se in this civil rights action pursuant to 42
U.S.C. § 1983. This case proceeds with Plaintiff's
original complaint filed on October 14, 2015, against
defendants Vazrick Navasartian (D.D.S.) and J. Dubiel
(D.D.S.) on Plaintiff's medical claims under the Eighth
Amendment and related state law claims. (ECF No. 1.)
December 13, 2016, Defendant Navasartian
(“Defendant”) filed a motion for summary
judgment. Fed.R.Civ.P. 56. (ECF No. 26.) On February 8, 2017,
Plaintiff filed an opposition, and on February 14, 2017,
Defendant filed a reply. (ECF No. 31.) The motion has been
submitted upon the record without oral argument pursuant to
Local Rule 230(l), and for the reasons that follow,
Defendant's motion shall be granted.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
is currently incarcerated in the custody of the California
Department of Corrections and Rehabilitation at Pleasant
Valley State Prison (PVSP) in Coalinga, California, where the
events at issue allegedly occurred. Defendants Navasartian
and Dubiel were dentists employed at PVSP during the relevant
time. Plaintiff's allegations follow.
26, 2015, Plaintiff had two teeth filled by defendant
Navasartian. The fillings were too high and left
Plaintiff's gums exposed. Plaintiff suffered severe pain
in his gums, mouth, and head. Plaintiff submitted a written
request for emergency treatment.
1, 2015, Plaintiff was examined by defendant Dubiel, who said
the fillings were too high. Dubiel ground down the fillings
and said they still needed to be fixed, but he would not fix
them. Plaintiff told Dubiel that his pain was sharp,
pounding, shooting, and throbbing, and that eating and
flossing made it worse. Dubiel did not prescribe any pain
medication for Plaintiff.
same day, Plaintiff submitted another request for dental
care, alleging that he was in extreme pain and had been
suffering from a headache for over a week. The next day,
Plaintiff was seen by defendant Navasartian. Plaintiff told
Navasartian about his extreme pain and that eating and
drinking made the pain worse. Navasartian did not prescribe
any pain medication for Plaintiff. The only treatment
Navasartian provided was salt. Navasartian told Plaintiff
that the complications from his dental procedure were caused
by Plaintiff's failure to floss. Plaintiff said this
could not be so because he has been flossing every day for
years. In Plaintiff's progress report following the
visit, Navasartian wrote that the cause of Plaintiff's
complication was that Plaintiff aggressively used a toothpick
on his teeth. Plaintiff has never used toothpicks since being
incarcerated. Navasartian authored a document falsely
claiming that Plaintiff refused dental treatment on that day.
next day, June 4, 2015, Ms. Lebo, a dental assistant, called
Plaintiff to the medical clinic and told him that neither
Navasartian nor Dubiel wanted to see him, and therefore he
would have to wait at least a week to receive treatment from
days later, on June 12, 2015, Plaintiff submitted another
request for dental care stating, “It's been over 2
weeks since I had my fillings done and having (sic)
to deal with the pain. Can I get some pain medication and
have you help fix my teeth!” (ECF No. 1 at ¶35.)
February 4, 2016, the court issued a screening order finding
that Plaintiff stated an Eighth Amendment deliberate
indifference claim and a state law medical negligence claim
against defendants Navasartian and Dubiel. (ECF No. 7.)
Eighth Amendment Medical Claim
maintain an Eighth Amendment claim based on prison medical
treatment, an inmate must show ‘deliberate indifference
to serious medical needs.'” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). As part
of proper medical care, “the Eighth Amendment requires
that prisoners be provided with a system of ready access to
adequate dental care.” Hunt v. Dental
Dep't, 865 F.2d 198, 200 (9th Cir. 1989). Prison
officials violate the Eighth Amendment if they are
deliberately indifferent to a prisoner's serious medical
needs, including dental needs. Hoptowit v. Ray, 682
F.2d 1237, 1253 (9th Cir. 1982).
two-part test for deliberate indifference requires the
plaintiff to show (1) “‘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,
'” and (2) “the defendant's response to
the need was deliberately indifferent.” Jett,
439 F.3d at 1096 (quoting McGuckin v. Smith, 974
F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds
by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136
(9th Cir. 1997) (en banc) (internal quotations omitted)).
Deliberate indifference is shown by “a purposeful act
or failure to respond to a prisoner's pain or possible
medical need, and harm caused by the indifference.”
Id. (citing McGuckin, 974 F.2d at 1060).
Deliberate indifference may be manifested “when prison
officials deny, delay or intentionally interfere with medical
treatment, or it may be shown by the way in which prison
physicians provide medical care.” Id. Where a
prisoner is alleging a delay in receiving medical treatment,
the delay must have led to further harm in order for the
prisoner to make a claim of deliberate indifference to
serious medical needs. McGuckin at 1060 (citing
Shapely v. Nevada Bd. of State Prison Comm'rs,
766 F.2d 404, 407 (9th Cir. 1985)).
indifference is a high legal standard.” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under
this standard, the prison official must not only ‘be
aware of the facts from which the inference could be drawn
that a substantial risk of serious harm exists, ' but
that person ‘must also draw the inference.'”
Id. at 1057 (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)). “‘If a prison official
should have been aware of the risk, but was not, then the
official has not violated the Eighth Amendment, no matter how
severe the risk.'” Id. (quoting Gibson
v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th
Cir. 2002)). “A showing of medical malpractice or
negligence is insufficient to establish a constitutional
deprivation under the Eighth Amendment.” Id.
at 1060. “[E]ven gross negligence is insufficient to
establish a constitutional violation.” Id.
(citing Wood v. Housewright, 900 F.2d 1332, 1334
(9th Cir. 1990)).
elements of a medical negligence claim include: ‘(1)
the duty of the professional to use such skill, prudence, and
diligence as other members of his profession commonly possess
and exercise; (2) a breach of that duty; (3) a proximate
causal connection between the negligent conduct and resulting
injury; and (4) actual loss or damage resulting from the
professional's negligence.'” Lambesis v.
Abiaro, No. 15CV1359-MMA (NLS), 2016 WL 1409555, at *2
(S.D. Cal. Apr. 11, 2016) (citing Avivi v. Centro Medico
Urgente Medical /// Center, 159 Cal.App.4th
463, 468, n.2 (2008) (internal quotations and citation
omitted); Johnson v. Superior Court, 143 Cal.App.4th
297, 305 (2006).
SUMMARY JUDGMENT STANDARD
party may move for summary judgment, and the Court shall
grant 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. Fed.R.Civ.P. 56(a)
(quotation marks omitted); Washington Mut. 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). The Court
may consider other materials in the record not cited to by
the parties, but it is not required to do so. Fed.R.Civ.P.
56(c)(3); Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017
(9th Cir. 2010).
does not bear the burden of proof at trial and in moving for
summary judgment, he need only prove an absence of evidence
to support Plaintiff's case. In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548 (1986)). If Defendant meets his 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 (1986)).
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). The Court
determines only whether there is a genuine issue for trial.
Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
2010) (quotation marks and citations omitted).
DEFENDANT'S STATEMENT OF UNDISPUTED FACTS
Jeff Elias (#T12953) was at all relevant times an inmate in
the custody of the California Department of Corrections and
Rehabilitation (CDCR), incarcerated at Pleasant Valley State
Prison (PVSP) in Coalinga, California. (Compl. ¶5.)
Defendant Vazrick Navasartian is a Doctor of Dental Surgery
(D.D.S.), licensed in the State of California since August
2002. He received his D.D.S. from the University of
California, Los Angeles, and received a Master of Public
Health from the Fielding School of Public Health at the
University of California, Los Angeles. (Decl. of Vazrick
Navasartian, D.D.S. (Navasartian Decl.) at ¶1.)
Navasartian is currently employed by the CDCR, Division of
Correctional Health Care Services (DCHCS), Inmate Dental
Services Program (IDSP), as a dentist at Pleasant Valley
State Prison (PVSP) in Coalinga, California, and has been
employed in this capacity for nine years. (Navasartian Decl.
at ¶2.) As a dentist at PVSP, Dr. Navasartian's
responsibilities include providing clinical services to
inmates housed at the prison, supervising auxiliary staff,
ordering medications, and handling administrative work.
(Navasartian Decl. at ¶3.)
Elias received a comprehensive exam and treatment plan from
Dr. Navasartian on September 9, 2014. At that time, no
restorations were planned or indicated on teeth #29 and #30.
(Navasartian Decl. at ¶ 5 & Ex. A; Decl. of Matthew
Milnes, D.D.S. (Milnes Decl.) at ¶4 & Ex. A.) The
treatment plan for inmate Elias was updated by Dr.
Navasartian on May 26, 2015, to include restorations #29DO
and #30MOB (letters refer to specific surfaces of the teeth
to be restored). These restorations were diagnosed based on:
(1) recurrent decay associated with existing restorations on
teeth #29 and #30; and (2) fractured existing amalgam
restorations on teeth #29 and #30 as documented in the
treatment note dated May 26, 2015. (Navasartian Decl. at
¶6 & Ex. B; Milnes Decl. at ¶5 & Ex. B.) On
May 26, 2015, Dr. Navasartian performed restorations
(fillings) on Elias' teeth #29 and #30. (Navasartian
Decl. at ¶7 & Ex. B; Milnes Decl. at ¶5 &
steps that may generally be followed by a dentist when
restoring a tooth include first a review of the health
history, the treatment plan, X-rays, and visual inspection of
the tooth to confirm restoration is necessary. A local
anesthetic may be utilized, any existing restorations
removed, any caries removed, a matrix and wooden wedge may be
used, then filling material is placed and condensed into the
preparation. Thereafter it is carved to fit the anatomy of
the tooth, any excess is cleaned off, the wedge is removed,
then the matrix, then any excess is removed from
interproximal spaces. The occlusion (bite) is checked,
interproximal contact is checked, and the patient is given
post-procedure instructions. For the restorations performed
on inmate Elias on May 26, 2015, Dr. Navasartian followed
these steps. (Navasartian Decl. at¶ 7.)
the restorations, Dr. Navasartian checked for occlusion (the
relationship between the maxillary (upper) and mandibular
(lower) teeth when they approach each other, as occurs during
chewing or at rest), and contact (an open contact is space
between adjacent teeth). No defects were noted. (Navasartian
Decl. at ¶7 and Ex. B; Milnes Decl. at ¶5 and Ex.
inmate Elias presented to the dental clinic for a
face-to-face triage with Dr. Dubiel on June 1, 2015, with a
chief complaint of, “Where these last two fillings were
done it hurts bad.” Dr. Dubiel checked for occlusion
with articulating paper and diagnosed an open contact between
teeth #29 and #30. Dr. Dubiel also diagnosed “both
fills high” in reference to the restorations placed by
Dr. Navasartian on teeth #29 and #30. The “high”
fillings were adjusted by Dr. Dubiel, who noted, “I/P
(inmate patient) felt better.” Dr. Dubiel also noted
restoration #29DO will be redone at the next appointment to
address the open contact between teeth #29 and #30.
(Navasartian Decl. at ¶8 & Ex. C; Milnes Decl. at
¶6 & Ex. C.)
3, 2015, inmate Elias presented to the dental clinic for a
face-to-face triage with Dr. Navasartian. (Navasartian Decl.
at ¶9 & Ex. E; Milnes Decl. at ¶7 & Ex. D.)
Inmate Elias had prepared a Dental Pain Profile on that date,
which Dr. Navasartian reviewed, wherein he checked boxes that
described his pain as “aching, pounding, tender,
shooting, throbbing, sore, and stabbing.” Inmate Elias
also indicated that “eating, drinking hot/cold water,
” made the pain worse. (Navasartian Decl. at ¶9
& Ex. D.) On June 3, 2015, inmate Elias reported his
chief concern as, “I have really bad pain, my gum
hurts, ” referencing teeth #29 and #30. (Navasartian
Decl. at ¶10 & Ex. D; Milnes Decl. at ¶7 &
Ex. D.) Dr. Navasartian performed an examination, reviewed
radiographs, and reviewed the patient summary of Plaintiff.
(Navasartian Decl. at ¶10 & Ex. D.) Dr. Navasartian
diagnosed moderate localized periodontitis with a probing
depth of > 6mm. (Navasartian Decl. at ¶10 & Ex.
D; Milnes Decl. at ¶7 & Ex. D.)
is defined as inflammation of the gingiva, loss of
interproximal bone, and supporting structures to the tooth
extending into the adjacent attachment apparatus. The disease
is characterized by the loss of clinical attachment due to
destruction of the periodontal ligament and loss of the
adjacent bone support. Clinical features may include edema,
erythema, gingival bleeding on probing, and/or suppuration.
It can develop as a result of diet, poor oral hygiene,
genetic predisposition, and the structure of the dentition.
(Navasartian Decl. at ¶10 & Ex. D.)
Navasartian also diagnosed gingivitis. Gingivitis is
inflammation limited to the free and attached gingiva. It may
be characterized by bleeding upon probing, redness of the gum
tissue, and pain. Its causes may include poor oral hygiene
and the accumulation of bacteria and plaque. (Navasartian
Decl. at ¶10 & Ex. D.) Dr. Navasartian's June 3,
2015 Dental Progress notes indicate, that in his exam, he
noted inmate Elias had “erythema, ” the area
around teeth #29 and #30 was “slightly endematous,
” his gingiva had “BOP” (Bleeding On
Probing), and he had pain on probing. (Navasartian Decl. at
¶11 & Ex. D.) Dr. Navasartian provided inmate Elias
with oral salt rinse to reduce gingival inflammation.
(Navasartian Decl. at ¶12 & Ex. D; Milnes Decl. at
¶7 & Ex. D.)
salt rinse may be recommended by the dentist based on
subjective and objective findings and, in Dr.
Navasartian's experience, may be beneficial in reducing
gingival inflammation, enhancing wound healing, and reducing
bleeding. (Navasartian Decl. at ¶12.)
Navasartian also noted the gingival condition was a result of
inmate Elias' “aggressive jamming of the tooth
pick.” (Navasartian Decl. at ¶13 & Ex. D;
Milnes Decl. at ¶7 & Ex. D.) When a patient
aggressively toothpicks his/her teeth, damage to the oral
tissues may occur, which can include gingival recession, loss
of bone or tooth structure, and interproximal gingival
lacerations. (Navasartian Decl. at ¶13.)
Elias responded to Dr. Navasartian's findings by becoming
agitated and stating, “You Mother Fucker did this to
me.” At that point, custody staff was contacted to have
inmate Elias removed from the dental clinic for his
uncooperative, aggressive, and disrespectful behavior. It is
common practice that when an inmate becomes combative, either
verbally or physically, they are removed from the dental
clinic by custody staff. (Navasartian Decl. at ¶14 &
Ex. D; Milnes Decl. at ¶7 & Ex. D.)
Doctor of Dental Science, Dr. Navasartian is authorized to
prescribe pain management medication to patients. There is,
however, no policy for when medication must be prescribed.
Generally speaking, a determination of the need for pain
medication is determined by subjective and objective
findings. In inmate Elias' case, the Dental Pain Profile
he had prepared on June 3, 2015, indicated that his pain was
being relieved/lessened by “taking 6 naproxen 2
motrin.” Thus, Dr. Navasartian did not prescribe any
pain management medication to inmate Elias at that time
because he was already taking Naproxen and ...