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finding that there was no deliberate indifference to the serious medical needs of an inmate when a prison official removed excess dental floss from a cell based upon security interests of the facility
Summary of this case from Ross v. Davidson Cnty. Sheriff's OfficeOpinion
Civil No. 00-1689-HA
September 30, 2002
Justavo Perez-Gutierrez, Ontario, OR, Plaintiff, Pro se.
Hardy Myers, Attorney General, Lynne D. Rennick, Assistant Attorney General, Leonard W. Williamson, Assistant Attorney General, Salem, OR, for Defendants.
OPINION AND ORDER
Plaintiff, Justavo Perez-Gutierrez, an inmate at Snake River Correctional Institution ("SRCI") who is proceeding with this action pro se, brings three civil rights claims pursuant to 42 U.S.C. § 1983, alleging that defendants Robert Lampert, Lanny Ryals, Eric Wiitala, Arlene Hendrick, Nancy Hansen, and Gary Getman, all of whom are connected with SRCI, violated the Eighth Amendment by demonstrating deliberate indifference to plaintiff's serious dental needs, thereby causing him pain and suffering, as well as irreversible harm from periodontal disease. (See Second Am. Compl. (#60) at 3, 8.) Currently before the court is defendants' Motion for Summary Judgment (#40), which, for the reasons set forth below, is granted. Also before the court is plaintiff's response, which was filed as a Motion to Strike the Defendants' Motion for Summary Judgment (#66). For the reasons set forth below, plaintiff's motion to strike is denied.
BACKGROUND
Plaintiff has been in the custody of the Oregon Department of Corrections ("ODOC") since November 13, 1996.
The record indicates that plaintiff timely received a dental screening on November 18, 1996. (Defs.' Mot. for Summ. J. (#40) at Ex. 102, Aff. of Eric Wiitala, D.M.D. (hereafter "Wiitala Aff."), Attach. 1, pp. 1, 7-9.) Dr. Richard Gorham, the dentist who performed plaintiff's intake dental screening, attests that, prior to plaintiff's incarceration, "he had long standing, poor dental health and needed periodontal scaling of all four quadrants." (Defs.' Mot. for Summ. J. at Ex. 101, Aff. of Richard Gorham, D.D.S. (hereafter "Gorham Aff."), p. 3, ¶ 12 Attach. 5, p. 1.)
Plaintiff was transferred to SRCI on or about January 7, 1997, and was initially scheduled for his first dental appointment on February 21, 1997; however, he failed to show or cancelled the appointment. (Id. at Attach. 5, p. 1 Defs.' Concise Stmt. of Mat. Facts at 3, ¶ 3.) Therefore, plaintiff received his first full periodontal scaling at SRCI on March 5, 1997, less than four months after he was admitted to ODOC custody. (Id. at Attach. 5, p. 1.)
Dr. Wiitala, who is a defendant dentist in this action, attests to the following:
Periodontal scaling is a dental cleaning process in which the dentist using special tools, removes the calculus from the teeth. Once the calculus is removed, the patient can maintain his dental hygiene with daily brushing and flossing. Even with calculus present, a patient can minimize further formation and maximize his gum health by brushing and flossing daily. Without a practice of responsible dental home care a patient may develop periodontal disease.
(Wiitala Aff. at p. 3, ¶ 6.)
Plaintiff argues that from that date to the present, defendants have denied him timely and adequate dental treatment for serious periodontal disease, as well as infections in his teeth and gums that caused irreparable damage and pain. (Brief to Supp. Pl.'s Mot. to Strike (#67) at 2.) From November 12, 1997, to May 27, 1998, plaintiff was incarcerated at the Oregon State Penitentiary's ("OSP") Intensive Management Unit ("IMU"); thereafter, he was returned to SRCI. (Defs.' Concise Stmt. of Mat. Facts at 3, ¶ 4.) Defendants contend that, on or about June 18, 1998, plaintiff was examined at SRCI by Dr. Whittet, who recommended continued scaling to the lower right quadrant. (Id.; Wiitala Aff. at Attach. 1, p. 3.) Because plaintiff had received a periodontal scaling to that area on May 26, 1998, while he was incarcerated at OSP, there was no urgent need for another scaling. (Id.) Plaintiff did not receive his next periodontal scaling at SRCI until January 4, 2000 — nearly twenty months later. (Gorham Aff. at p. 3, ¶ 14 Attach. 5, pp. 2-3.) Defendant Dr. Wiitala opined that, "by brushing and daily flossing, . . . [plaintiff] could maintain good dental health without additional scaling." (Wiitala Aff. at p. 5, ¶ 17.) Defendant Hendrick, a certified dental assistant at SRCI attests that, "[t]oothbrushes and baking soda are available to all inmates free of charge on their housing units." (Defs.' Mot. for Summ. J. at Ex. 104, Aff. of Arlene Hendrick (hereafter "Hendrick Aff."), p. 2, ¶ 4.)
Because plaintiff's claims relate only to the care that he received at SRCI, the dental care that he received while housed elsewhere is not at issue in this case. However, the record indicates that he received periodontal scalings at OSP on February 3, 1998, March 24, 1998, and May 26, 1998. (Wiitala Aff. at p. 5, ¶ 17.)
From late 1998 through November of 1999, because of a shortage of dental care providers at SRCI, visiting dentists from other ODOC institutions provided treatment to SRCI inmates; "[d]ue to constraints of time these dentists were able to treat only the most urgent dental cases at SRCI." (Gorham Aff. at p. 3, ¶ 9.) Nevertheless, the record indicates that plaintiff was treated by a dentist at SRCI on January 22, 1999, after complaining that his gums were bleeding and swollen, and that the dentist recommended a hygiene plan. (Id. at Attach. 5, p. 1.) After similar complaints in July of 1999, plaintiff was again treated by a dentist at SRCI. (Id. at pp. 2-3.)
The record shows that after Dr. Wiitala performed a periodontal scaling on plaintiff on January 4, 2000, he subsequently examined and treated plaintiff for dental problems on July 6, 2000 (front tooth pain), August 10, 2000 (dental hypersensitivity), November 28, 2000 (periodontal scaling of all four quadrants), and April 19, 2001 (dental hypersensitivity; but plaintiff refused treatment). (Wiitala Aff. at pp. 3-4, 8-9 Attach. 1, pp. 2-4; Gorham Aff. at Attach. 5, pp. 5-6.) During his November 2000 examination of plaintiff, Dr. Wiitala observed "severe neglect of oral hygiene demonstrated by severe plaque and calculus buildup," (Wiitala Aff. at p. 8, ¶ 32) and again in April of 2001, Dr. Wiitala observed "large amounts of calculus buildup and food debris in . . . [plaintiff's] lower teeth." (Id. at p. 8, ¶ 34.) Dr. Gorham attests that, "[periodontal] [s]caling is . . . only part of . . . [plaintiff's] total dental treatment.
In order to maintain his dental health . . . plaintiff must brush and floss his teeth daily, . . . [which] will prevent both the growth of bacteria and calculus buildup and can actually halt the progression of periodontal disease." (Gorham Aff. at p. 4, ¶ 15.)
In addition to receiving treatment at the dental clinic, plaintiff's medical records indicate that, beginning in May of 2000, he also regularly requested medical attention at sick call for his dental needs. (Defs.' Mot. for Summ. J. at Ex. 107, Aff. of Nancy Hansen, R.N. (hereafter "Hansen Aff."), p. 3, ¶ 8 Attach. 1, p. 9.) On May 17, 2000, plaintiff complained of dental pain, and, after the sick call nurse observed that his gums were red and swollen, with some discharge present, she called Dr. Wiitala, who prescribed Clindamycin (an antibiotic) and Naprosyn (a pain reliever). (Id. p. 3, ¶ 10.) On May 22nd, plaintiff again complained of dental pain at sick call and was referred to the dental clinic; he was still taking the antibiotics and pain relievers. (Id. p. 3, ¶ 11.) When plaintiff complained on May 25th that Naprosyn was ineffective, he was given Tylenol until a dentist could examine him. (Id. p. 3, ¶ 12.) On May 29th, plaintiff was given more Naprosyn for complaints of dental pain. (Id. p. 4, ¶ 13.)
On June 7, 2000, after complaining of continuing dental pain, his pain medication was changed to Orudis, the dosage of which was increased on the same day at plaintiff's request. (Hansen Aff. at p. 4, ¶ 14.) On June 14th, 16th, 27th, and 30th, plaintiff complained of dental pain, but since he had already been referred to the dental clinic, his pain medication was simply continued as prescribed. (Id. p. 4, ¶¶ 15-19.) Plaintiff did not complain of dental pain at sick call again until July 26, 2000; he was continued on Orudis and rescheduled for the dental clinic. (Id. p. 5, ¶ 21.)
On July 6, 2000, plaintiff was examined at the dental clinic by Dr. Wiitala, who applied a desensitizing and sealing agent to plaintiff's teeth. (Wiitala Aff. at p. 3, ¶ 10.)
On August 3, 2000, plaintiff complained of "bad" dental pain at sick call; because his dental condition was unchanged, the nurse recommended salt water rinses and contacted staff at the dental clinic, who recommended that plaintiff stop using baking soda when brushing his teeth. (Id. p. 5, ¶ 22.) When plaintiff complained of the same conditions at sick call again on August 8th, he was continued on Orudis and salt water rinses. (Id. p. 5, ¶ 23.)
On August 10, 2000, plaintiff was examined again by Dr. Wiitala, who applied Gluma, a sealer designed to reduce dental hypersensitivity, to plaintiff's front teeth. (Wiitala Aff. at p. 3, ¶ 11.)
Plaintiff's dental condition was unchanged on September 1, 2000, so the sick call nurse continued to give him Orudis. (Id. p. 6, ¶ 24.)
On September 12, 2000, plaintiff asked that his Orudis prescription be renewed; however, defendant nurse Hansen, concerned that long-term Orudis use could lead to gastro-intestinal bleeding, changed his pain medication to Percogesic on a trial basis. (Hansen Aff. at p. 6, ¶ 25.) On or about September 18th, plaintiff complained of toothache and gum pain, and was examined by Dr. Hartwig, who continued plaintiff's Orudis prescription, and ordered a follow-up with the dental clinic. (Id. at p. 7, ¶ 30.) On September 28th, nurse Hansen examined plaintiff at sick call for a spot on his gums; in case it was an infection, she consulted the dental clinic staff, who prescribed Amoxicillin (an antibiotic). (Id. at p. 8, ¶ 32.)
On October 19, 2000, plaintiff complained at sick call that his teeth and gums hurt, and requested more Amoxicillin; however, nurse Hansen noted that the condition of his gums had improved, and did not recommend more antibiotics. (Id. at p. 8, ¶ 33.) Plaintiff was still taking Orudis for pain, and it was renewed for another month on November 21, 2000. (Id. at p. 8, ¶¶ 33-34.) On December 28, 2000, Dr. Hartwig, concerned that plaintiff's dental pain had become chronic, scheduled a long-term medication evaluation with another practitioner. (Hansen Aff. at p. 8, ¶ 35 Attach. 1, p. 22.)
Plaintiff was examined and treated at the dental clinic by Dr. Wiitala on November 28, 2000. (Wiitala Aff. at p. 8, ¶ 32.)
On January 23, 2001, plaintiff complained at sick call that his medication was not effectively relieving his dental pain; the nurse consulted with dental staff, who advised plaintiff that the tooth would continue to be painful unless he chose to have it extracted. (Id. at p. 9, ¶ 36 Attach. 1, p. 23.) On February 15, 2001, plaintiff complained at sick call that his teeth were painfully sensitive to temperature, and the nurse consulted with dental staff, who advised that he would continue to receive pain medication, but that his condition would not improve until the diseased tooth was removed. (Id. at p. 9, ¶ 37 Attach. 1, p. 23.)
The record indicates that, on April 21, 2001, plaintiff was examined by Dr. Wiitala, who had planned to perform a four-quadrant periodontal scaling; however, during the course of the examination plaintiff became agitated and argumentative, and asked to be returned to his cell, having refused further treatment. (Gorham Aff. at Attach. 5, pp. 5-6.)
Based on the above facts, plaintiff alleges three separate Eighth Amendment claims against the various defendants. In Claim One, plaintiff alleges that all of the defendants caused him to suffer serious pain by denying him adequate dental care; in Claim Two, plaintiff alleges that defendants Lampert, Ryals, Wiitala, Hendrick and Hanson denied him access to SRCI dental care; and in Claim Three, plaintiff alleges that all of the defendants denied him dental products ordered by the state court. (Second Am. Compl. at 3, 8.)
Specifically, plaintiff alleges that on or about March 14, 2000, the state court (Malheur County Case No. 991130912M) ordered the ODOC and defendant Lampert to provide the following to plaintiff: timely and adequate dental care; dental examinations every three to four months; issued dental floss daily; issued a new toothbrush weekly; at least baking soda daily to clean teeth. (Second Am. Compl. at 10.)
Plaintiff requests compensatory damages in the amount of $100,000.00 per defendant, punitive damages in the amount of $100,000.00, and nominal damages in the form of attorney fees. (Id. at 14.) Plaintiff also requests declaratory relief, and injunctive relief to "halt defendants' denial of plaintiff's serious dental needs," as well as an order directing defendants to provide plaintiff with dental care. (Id.)
DISCUSSION I. Plaintiff's Motion to Strike
In plaintiff's response to defendants' motion for summary judgment, which he has titled as a motion to strike (#66), plaintiff asks this court to strike defendants' motion for summary judgment (#40), together with its supporting affidavits; defendants' memorandum in support of summary judgment (#41); and defendants' concise statement of material facts (#42). Plaintiff argues that this court should grant his motion to strike because, 1) defendants failed to answer his amended complaint; 2) the sworn statements of defendants' affiants refer to portions of plaintiff's original complaint that were omitted in his amended complaint; and 3) there are genuine issues of material fact that preclude summary judgment.
Defendants contend that all of plaintiff's complaints allege the same facts or allegations, and that they timely filed an answer to plaintiff's amended complaint on April 10, 2001. (Defs.' Reply to Pl.'s Mot. to Strike (#75) at 2.)
This court agrees. In his first amended complaint, plaintiff simply edited the original so that it was presented in a more comprehensible format, and omitted eleven extraneous paragraphs. The defendants named and the underlying factual bases of his claims are identical, although plaintiff did increase the amount of his demand for money damages to $100,000 per defendant. None of these changes materially affect this court's ability to render a decision on defendants' motion for summary judgment. Accordingly, plaintiff's motion to strike is denied.
II. Summary Judgment Standards
Under Fed.R.Civ.P. 56(c), summary judgment is authorized if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1470 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id. at 1468.
III. Qualified Immunity A. Legal Standard
The defense of "qualified immunity" protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The affirmative defense of qualified immunity does not extend to claims for declaratory or injunctive relief. American Fire, Theft Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991) (citations omitted); see also Wood v. Strickland, 420 U.S. 308, 314 n. 6 (1975) ("[I]mmunity from damages does not ordinarily bar equitable relief as well.").
This rule "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'" Burns v. Reed, 500 U.S. 478, 494-95 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The entitlement to qualified immunity "is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
As such, "a defendant is entitled to a ruling on qualified immunity `early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.'" Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001) (quoting Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156 (2001)).
The required first step in a qualified immunity analysis "is to consider the materials submitted in support of, and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Jeffers, 267 F.3d at 909 (citing Saucier, 121 S.Ct. at 2156). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 121 S.Ct. at 2156.
If a constitutional violation could be made out on a favorable view of the submissions before the court, "the next, sequential step is to ask whether the right was clearly established." Id. "This inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer his conduct was unlawful in the situation he confronted." Id. (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).
Finally, if the law governing the state official's conduct was clearly established, the court must inquire whether "a reasonable state official [could] have believed his conduct was lawful[.]" Jeffers, 267 F.3d at 910 (citing Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995) (citing Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993)). "Although a defendant's subjective intent is not relevant to the qualified immunity defense, his mental state is relevant where it is an element of the alleged constitutional violation." Jeffers, 267 F.3d at 911 (citing Crawford-El v. Britton, 523 U.S. 574, 589 n. 11 (1998)).
B. Analysis: Violation of a Constitutional Right 1. Eighth Amendment Standards
Generally, deliberate indifference to a serious medical need presents a cognizable claim for a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Toussiant v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987); McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1998).
"`Dental care is one of the most important medical needs of inmates.'" Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (quoting Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980)). Therefore, the Eighth Amendment "requires that prisoners be provided with a system of ready access to adequate dental care." Hunt, 865 F.2d at 200-01 (citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982).
In addition, the deliberate indifference standard "is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because `the State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin, 974 F.2d at 1060 (quoting Hudson v. McMillan, 503 U.S. 1, 6 (1991)).
Specifically, a determination of "deliberate indifference" involves two elements: (1) the seriousness of the prisoner's medical needs; and (2) the nature of the defendant's responses to those needs. McGuckin, 974 F.2d at 1059.
First, a "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. (citing Estelle, 429 U.S. at 104). Examples of instances where a prisoner has a "serious" need for medical attention include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. Id. at 1059-1060 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)); Hunt, 865 F.2d at 200-01 (9th Cir. 1989).
Second, the nature of a defendant's responses must be such that the defendant purposefully ignores or fails to respond to a prisoner's pain or possible medical need in order for "deliberate indifference" to be established. McGuckin, 974 F.2d at 1060. Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere with medical treatment, or may be demonstrated by the way in which prison officials provide medical care. Id. at 1059-60.
However, a showing of merely inadvertent or even negligent medical care is not enough to establish a constitutional violation. Estelle, 429 U.S. at 105-06; Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998). Instead, an inmate must allege facts sufficient to indicate a culpable state of mind in the part of prison officials. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991). A difference of opinion between prison medical personnel regarding the appropriate course of an inmate's treatment does not give rise to a § 1983 claim, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), nor does a dispute between a prisoner and prison officials over the necessity for or extent of medical treatment amount to a constitutional violation. See, e.g., Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir. 1971); Mayfield v. Craven, 433 F.2d 873 (9th Cir. 1970); McKinney v. People of the State of California, 427 F.2d 160 (9th Cir. 1970).
2. Claim One: Denial of Adequate Dental Care
In Claim One, plaintiff alleges that all of the defendants violated the Eighth Amendment by denying him adequate dental care, thereby causing him to suffer unnecessary pain and injury from periodontal disease.
Defendants do not contend that plaintiff was not suffering from a "serious" medical condition; the record indicates that plaintiff did suffer from gum infections and pain related to his persistent periodontal disease. Therefore, viewing the facts in a light most favorable to plaintiff, this court will presume, for the moment, that plaintiff's dental problems constituted a serious medical condition.
However, to establish an Eighth Amendment violation, plaintiff must also demonstrate that the defendants were deliberately indifferent to his dental needs.
Defendants contend that they each are entitled to qualified immunity because they were not deliberately indifferent to plaintiff's pain and dental needs, and therefore no Eighth Amendment violation occurred. This court agrees. The record indicates that since his admission to ODOC custody, plaintiff has been examined and treated regularly by dental health care providers for his pre-existing periodontal disease. In particular, plaintiff argues that, upon his return to SRCI in June of 1998, he was denied timely and adequate dental treatment, which lead to the painful deterioration of his teeth and gums. While the record shows that nearly twenty months elapsed between the periodontal scaling that plaintiff received at OSP on May 26, 1998, and his next periodontal scaling at SRCI on January 4, 2000, he was examined and treated by dentists twice during that period, at six to seven month intervals. Any delays in plaintiff's dental treatment during this time were attributable to an unfortunate shortage of dentists, rather than deliberate delay intended to cause plaintiff "unnecessary and wanton infliction of pain." See Hunt, 865 F.2d at 210.
The record also shows that while incarcerated at OSP, plaintiff received dental treatment, including limited periodontal scaling, on a nearly monthly basis, and that his dental care providers recommended follow-up scaling every four to six weeks. (Gorham Aff. at Attach. 5, p. 1.) While plaintiff did not receive this level of care upon his return to SRCI in June of 1998, his dental care providers reviewed his chart and concluded that his periodontal disease could be arrested if plaintiff diligently attended to his daily oral hygiene by brushing and flossing his teeth. (Id. at p. 4, ¶¶ 15-17.) After defendant Dr. Wiitala began treating plaintiff on January 4, 2000, plaintiff was examined and treated by defendant Wiitala on four more occasions in 2000-01; on each occasion Dr. Wiitala rendered an appropriate treatment for plaintiff's dental condition. (Wiitala Aff. at pp. 3-4, 8-9 Attach. 1, pp. 2-4; Gorham Aff. at Attach. 5, pp. 5-6.) In addition, Dr. Wiitala authorized antibiotics and pain medication for plaintiff to treat his symptoms in between dental appointments. At most, plaintiff has shown a difference of opinion among his prison dental care providers as to the appropriate course of treatment, which does not give rise to a constitutional violation. See Sanchez, 891 F.2d at 242. Defendant Wiitala was not deliberately indifferent to plaintiff's serious dental needs, and is therefore entitled to qualified immunity on Claim One.
Similarly, defendant SRCI dental technician Hendrick and SRCI nurse Hansen were not deliberately indifferent to plaintiff's dental needs. The record indicates that Ms. Hendrick's duties were limited to scheduling SRCI inmates for dental services and assisting the dentists at the SRCI clinic. (Hendrick Aff. at p. 1, ¶ 3.) Ms. Hendrick was not authorized to provide dental treatment. (Id.) Because plaintiff was, in fact, scheduled for treatment at the dental clinic on a regular basis, defendant Hendrick was not deliberately indifferent to plaintiff's dental needs. Nurse Hansen also did for plaintiff what she could by giving him authorized pain medications upon request, inspecting his teeth and gums for infection, seeking advice from the dental clinic to address plaintiff's complaints, and referring him to the dental clinic as appropriate. The record reveals that from May 17, 2000, the date on which plaintiff first began to seek medical attention for dental needs at sick call, to April 21, 2001, plaintiff visited sick call regarding his dental needs approximately twenty-one times, and was treated appropriately on each occasion. (Hansen Aff. at pp. 3-9.)
Based on the record, it appears that the pain from plaintiff's gum infection was intermittent, and related to his failure to maintain good oral hygiene; to the extent that he believes a different course of pain management should have been provided, it constitutes a difference of opinion between the prisoner and his health care providers, which does not rise to the level of a constitutional violation. See Shields, 442 F.2d at 410.
Defendant Getman, who is a Correctional Officer at SRCI, was not directly responsible for providing dental care to plaintiff. The record indicates that defendant Getman's sole connection with plaintiff's dental care was related to an incident on September 13, 2000, during which Getman confiscated contraband dental floss (plaintiff had two packages of floss, when he was only authorized to have one) from plaintiff's cell.
(Defs.' Mot. for Summ. J. at Ex. 105, Aff. of Gary Getman (hereafter "Getman Aff."), pp. 1-3, ¶¶ 1, 4-8.) Because dental floss can be converted into a weapon or escape device, its use by inmates such as plaintiff, who are housed in the Intensive Management Unit ("IMU"), a maximum security facility, is closely regulated and monitored. (Defs.' Mot. for Summ. J. at Ex. 106, Aff. of Paula Allen, pp. 2-3, ¶¶ 4-9.) Due to these security risks, inmates are not permitted to hoard excess dental floss; when officer Getman confiscated plaintiff's dental floss, he did so not because he was deliberately indifferent to plaintiff's dental condition, but because the dental floss posed a risk to the safety of other inmates and SRCI staff. (Getman Aff. at p. 2, ¶¶ 4-6.)
Therefore, defendant Getman is entitled to qualified immunity.
The remaining two defendants, SRCI Superintendent Lampert and Health Services Manager Ryals, were not directly responsible for providing dental or medical care to plaintiff, and cannot be held vicariously liable for the alleged failings of the health care staff at SRCI. See Monell v. Dept. of Social Servs., 436 U.S. 658, 691-94 (1978). Plaintiff has failed to show any connection between these defendants' actions (or inactions) and the alleged violation of plaintiff's Eighth Amendment rights. In any event, this court has concluded that, based on plaintiff's medical records, SRCI health care staff who were directly involved in plaintiff's care were not deliberately indifferent to plaintiff's serious dental needs, and therefore no Eighth Amendment violation occurred. To the extent that plaintiff believes that his dental treatment was inadequate, and that defendants Lampert and Ryals could have better managed the delivery of dental care at SRCI, it constitutes a difference of opinion regarding the course of medical treatment between the prisoner plaintiff and his health care providers, which does not rise to the level of a constitutional violation. See Shields, 442 F.2d at 410.
Accordingly, defendants Lampert and Ryals are entitled to qualified immunity with respect to Claim One.
3. Claim Two: Denial of Access to Dental Care
In Claim Two, plaintiff alleges essentially the same underlying facts as in Claim One, and alleges that all of the defendants except officer Getman violated the Eighth Amendment by denying him access to dental care at SRCI. The Ninth Circuit articulated the level of medical (including dental) care constitutionally required in state prisons as follows:
1) prisoners must be allowed to request medical care; 2) prisoners must have access to competent medical personnel; and 3) prisoners must have adequate emergency care.
Hoptowit, 682 F.2d at 1253.
As discussed above in reference to Claim One, the record indicates that defendants delivered constitutionally adequate access to dental care. Plaintiff was permitted to request, and in fact did request dental care and medical care on numerous occasions; plaintiff was treated by qualified personnel; and plaintiff did not have a medical or dental emergency that went untreated. Therefore, defendants Lampert, Ryals, Wiitala, Hendrick, and Hansen did not violate the Eighth Amendment by denying plaintiff access to dental care, and are entitled to qualified immunity on Claim Two.
4. Claim Three: Denial of Dental Hygiene Supplies
In Claim Three, plaintiff alleges that all defendants have violated the Eighth Amendment by denying him the dental products ordered by the state court. As with any other Eighth Amendment claim, the "deliberate indifference" standard applies to Claim Three as well: it requires that, at a minimum, defendants thought about a matter and chose to ignore it. See Farmer, 511 U.S. at 837-38. This standard is the functional equivalent of criminal recklessness. Id. at 839-40. The record demonstrates only isolated incidents where a defendant withheld dental supplies, and none of the incidents rise to the level of a constitutional violation, because the denial of dental supplies was not motivated by deliberate indifference to plaintiff's serious medical condition.
This court makes no judgement, however, as to whether there was a violation of the state court order. If plaintiff so desires, he can pursue a remedy in state court for the alleged violations of the Malheur County court's order.
Specifically, plaintiff contends that defendant Getman unlawfully deprived him of dental floss on two occasions. (Getman Aff. at p. 3.) As discussed above, Getman confiscated plaintiff's dental floss due to security restrictions; accordingly, he was not deliberately indifferent to plaintiff's need for dental hygiene supplies, and is entitled to qualified immunity.
With respect to defendant Hendrick, she attests that she was not authorized to distribute dental hygiene supplies to SRCI inmates, including plaintiff, since these items could either be purchased at the SRCI canteen, or toothbrushes and baking soda would be provided in the inmates' housing units free of charge. (Hendrick Aff. at p. 1, ¶¶ 3-4.) Similarly, defendant Wiitala, a dentist at the SRCI clinic, was not responsible for providing plaintiff with dental supplies, attesting that plaintiff "could obtain a new toothbrush weekly on an exchange basis by contacting his housing unit officer." (Wiitala Aff. at p. 9, ¶ 35.) Because defendants Hendrick and Wiitala did not deny dental supplies to plaintiff out of deliberate indifference to his dental condition, they are entitled to qualified immunity.
There is an incident in the record where an unidentified dental department staff member recommended that plaintiff discontinue using baking soda when brushing his teeth; however, this action appears to have been motivated by a change in the course of plaintiff's treatment, was apparently of limited duration, and as such does not constitute deliberate indifference to plaintiff's need for dental supplies. (See Hansen Aff. at p. 5, ¶ 22.)
With respect to defendant nurse Hansen, she attests that, pursuant to a physician's order dated February 2000, plaintiff was authorized to receive dental floss, and that "he was receiving dental floss once a day during evening medline with instructions to return it to the same nurse before she left for security reasons." (Hansen Aff. at p. 6, ¶ 26.) Hansen attests that, while new packets of floss are issued on an "exchange basis" to inmates such as plaintiff who are in maximum security housing because of the security risks posed by dental floss, if plaintiff had his dental floss confiscated, "this fact did not prevent him from receiving dental floss the next day. He only needed to tell the nurse his dental floss was confiscated and the nurse would issue new dental floss after verifying the information with security staff." (Id. at pp. 7, 11.) Hansen and other health care providers regulated plaintiff's access to dental floss due to security restrictions; accordingly, she was not deliberately indifferent to plaintiff's need for dental hygiene supplies, and is entitled to qualified immunity.
Again, the remaining two defendants, Lampert and Ryals, were not directly responsible for providing dental supplies to plaintiff, and cannot be held vicariously liable for the alleged failings of the staff at SRCI. See Monell v. Dept. of Social Servs., 436 U.S. 658, 691-94 (1978). The record indicates that plaintiff had access to dental hygiene supplies, and that while there were restrictions placed on their use, plaintiff did in fact receive toothbrushes, dental floss and baking soda free of charge. In any event, this court has concluded that, based on the record, SRCI staff who were directly involved in plaintiff's care and supervision were not deliberately indifferent to plaintiff's need for dental supplies, and therefore no Eighth Amendment violation occurred. Accordingly, defendants Lampert and Ryals are entitled to qualified immunity with respect to Claim Three.
IV. Equitable Relief: Merits of Plaintiff's Claims
Because all defendants are entitled to qualified immunity from liability for damages for all three of plaintiff's § 1983 claims, the only remedies remaining for plaintiff are those of injunctive and declaratory relief.
Plaintiff asks this court to "halt defendants' denial of plaintiff's serious dental needs," and order defendants to provide plaintiff with dental care. (Second Am. Compl. at 14.)
The Eighth Amendment prohibits cruel and unusual punishment, and "[d]enial of medical attention to prisoners constitutes an [E]ighth [A]mendment violation if the denial amounts to deliberate indifference to serious medical needs of the prisoners." Toussiant, 801 F.2d at 1111 (citing Estelle, 429 U.S. at 106). Deliberate indifference to a serious medical need exists when a prison official knows that an inmate faces a "substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. 825 at 847. "A `serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104).
The applicable legal standard is discussed in greater detail at Part III.B, pp. 15-17.
As discussed in greater detail above, the record demonstrates that there is an absence of any genuine issue of material fact with respect to the adequacy of the dental care plaintiff received (Claim One), plaintiff's access to dental care at SRCI (Claim Two), and plaintiff's access to dental hygiene products (Claim Three). Defendants did not purposefully ignore or fail to respond to prisoner's pain and serious dental needs; instead, he was examined and treated regularly for his medical conditions, he accessed the SRCI health care services regularly, and he was provided, with reasonable restrictions, with sufficient dental hygiene supplies. To the extent that plaintiff contends that another course of treatment for his periodontal disease would have resulted in a better outcome, the most he has shown is that there was a difference of opinion among his prison health care providers; failure to implement an alternative course of treatment does not constitute an Eighth Amendment violation. See Sanchez, 891 F.2d at 242.
In this case, plaintiff has not demonstrated a "likelihood of substantial and immediate irreparable injury." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Because he has not suffered any violation of a federal constitutional right, he has failed to demonstrate a "real or immediate threat that [he] will be wronged again" and thus is not entitled to the equitable relief he seeks. Id. (quoting O'Shea v. Littleton, 414 U.S. 488, 502 (1974)). Finally, in their reply memorandum, defendants note that plaintiff's May 21, 2002, motion for stay (#71) admitted that plaintiff anticipates that he will no longer be incarcerated at SRCI, since his basis for requesting the stay was to allow him to relocate after his term of incarceration concluded. (Defs.' Reply to Pl.s' Mot. to Strike at 2, n. 1.) Furthermore, defendants contend that plaintiff's parole officer informed them that plaintiff "was deported on June 14, 2002, and is currently at an unknown location in Mexico." (Id.)
Plaintiff's release renders his request for injunctive relief related to the conditions of confinement at SRCI moot, because the defendants are no longer responsible for providing plaintiff with dental care or supplies, and the record contains no evidence of that plaintiff has the expectation of being incarcerated again at SRCI. See Preiser v. Newhich, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1990). Accordingly, because plaintiff has failed to establish an Eighth Amendment violation, because he is not entitled to the equitable relief he seeks, and because his release and subsequent deportation to Mexico make the requested relief moot, defendant's motion for summary judgment is granted.
CONCLUSION
Based on the foregoing, defendants' Motion for Summary Judgment (#40) is GRANTED. Plaintiff's response, filed as a Motion to Strike Defendants' Motion for Summary Judgment (#66) is DENIED.
Accordingly, because defendants Robert Lampert, Lanny Ryals, Eric Wiitala, Arlene Hendrick, Nancy Hansen, and Gary Getman, are entitled to qualified immunity from liability for damages on all of plaintiff's claims, and because plaintiff is not entitled, on the merits, to the equitable relief that he seeks, plaintiff's claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.