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Elias v. Navasartian

United States District Court, E.D. California

May 4, 2017

JEFF ELIAS, Plaintiff,
v.
VAZRICK NAVASARTIAN, et al., Defendants.

          FINDINGS AND RECOMMENDATION, RECOMMENDING THAT DEFENDANT NAVASARTIAN'S MOTION FOR SUMMARY JUDGMENT BE GRANTED (ECF No. 26.)

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Jeff 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.)

         On 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.[1] (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.

         II. SUMMARY OF PLAINTIFF'S ALLEGATIONS

         Plaintiff 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.

         On May 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.

         On June 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.

         That 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.

         The 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 another dentist.

         Eight 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.)

         III. PLAINTIFF'S CLAIMS

         On 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.[2] (ECF No. 7.)

         A. Eighth Amendment Medical Claim

         “[T]o 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).

         The 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)).

         “Deliberate 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)).

         B. Medical Negligence

         “The 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).

         II. SUMMARY JUDGMENT STANDARD

         Any 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).

         Defendant 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)).

         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). 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).

         V. DEFENDANT'S STATEMENT OF UNDISPUTED FACTS [3]

         Plaintiff 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.)

         Dr. 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.)

         Inmate 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 & Ex. B.)

         The 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.)

         Following 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. B.)

         Subsequently, 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.)

         On June 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.)

         Periodontitis 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.)

         Dr. 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.)

         An oral 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.)

         Dr. 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.)

         Inmate 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.)

         As a 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 ...


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