Opinion
No. C 99-2571 MMC (Docket Nos. 92, 100, 113, 114)
August 2, 2001
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This is a civil rights action brought by a pro se prisoner pursuant to 42 U.S.C. § 1983. Following an initial review of the complaint, the court (Zimmerman, M.J.) found that plaintiff had stated a cognizable claim under the Eighth Amendment for deliberate indifference to his serious medical needs. The defendants are three medical professionals who treated plaintiffs broken jaw in the course of his travels between San Quentin State Prison ("San Quentin") and Monterey County Jail in 1998. Plaintiff is currently incarcerated in the California State Prison-Solano.
On December 21, 2000, the Court, inter alia, granted defendant Dr. Fithian's motion for summary judgment, denied plaintiffs motion for summary judgment, and denied motions to dismiss brought by defendant Keith Denkler, M.D. ("Dr. Denkler") and defendant Tam Bui, M.D. ("Dr. Bui"). Dr. Denkler and Dr. Bui have each filed a motion for summary judgment and plaintiff has filed oppositions to these motions.
BACKGROUND
During breakfast on May 3, 1998, an inmate at San Quentin struck plaintiff and broke his jaw. Plaintiff was transported to the Novato Community Hospital where defendant Dr. Denkler performed surgery, installing two metal plates in plaintiffs jaw and chin and wiring his mouth shut. Plaintiff then returned to San Quentin and was placed under the care of defendant Dr. Bui. Approximately six weeks later, plaintiff was transferred to the Monterey County Jail to face criminal charges; at the Monterey County Jail, doctors found an infection in plaintiffs jaw. At the end of July 1998, the jail referred plaintiff to an outside specialist, who told plaintiff that complications had arisen from his surgery and recommended corrective surgery. Plaintiff remained at the Monterey County Jail until late September 1998, when he returned to San Quentin. He did not receive corrective surgery, but his swelling and infection were successfully treated with antibiotics.
In November 1998, plaintiff was transferred to the California Medical Facility at Vacaville and then in 1999 to the California State Prison-Solano, where he has continued to seek treatment for his condition. An oral surgeon who examined plaintiff in November 2000 recommended that plaintiff undergo corrective surgery.
In this action, plaintiff does not seek injunctive relief. Instead, he seeks damages and costs to cover the expense of corrective surgery by a private specialist.
DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Id.
The court will grant summary judgment "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 . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding a fact is material if it might affect the outcome of the suit under governing law; a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted). The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See Id. at 631.
B. Deliberate Indifference to Serious Medical Needs
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). In order for deliberate indifference to be established, there must be a purposeful act or failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. Neither a finding that a defendant's actions are egregious nor that they resulted in significant injury to a prisoner is required to establish a violation of the prisoner's federal constitutional rights. See id. at 1060, 1061 (citing Hudson v. McMillian, 503 U.S. 1, 7-10 (1992)).
Because the parties do not dispute that plaintiffs medical needs were sufficiently serious, the Court will not discuss in detail the Eighth Amendment standard for "serious" medical needs.
"A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). In order to prevail on a claim involving choices between alternative courses of treatment, a plaintiff must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that they chose this course in conscious disregard of an excessive risk to plaintiffs health. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837 (1994)). A claim of mere negligence or harassment related to medical problems is not enough to make out a violation of the Eighth Amendment. See Franklin, 662 F.2d at 1344.
C. Defendant Denkler
Dr. Denkler moves for summary judgment on the ground that plaintiff has failed to create a genuine issue of material fact as to whether Dr. Denkler was deliberately indifferent to plaintiffs medical needs. Plaintiff argues that Dr. Denkler inserted the wrong kind of metal plates in his jaw, inserted one of the plates incorrectly such that it is impinging on a nerve, and failed to remove the plates after thirty days. Additionally, plaintiff argues that Dr. Denkler failed to notice or treat the infection in a follow-up appointment. As explained above, deliberate indifference may be established by medically unacceptable treatment, see Jackson, 90 F.3d at 332, or by the failure to take reasonable steps to abate a substantial risk of harm, see Farmer, 511 U.S. at 837.
Dr. Denkler has produced the sworn opinions of a plastic surgeon, Gilbert Gradinger, M.D., and an oral surgeon, Stephen A. Schendel, M.D., D.D.S., that Dr. Denkler performed the surgery correctly. Specifically, these experts concluded that Dr. Denkler appropriately chose lighter weight metal plates because the jaw was being wired shut for four weeks. See Denkler Exhs. C ¶ 7, D ¶ 7, Other than his own personal opinion, which is insufficient to establish Dr. Denkler's deliberate indifference, see Franklin, 662 F.2d at 1344, plaintiff does not provide any evidence that Dr. Denkler's choice of plates was medically unacceptable. Plaintiff submits letters from two oral surgeons: a letter written in June 1998 by William Bruce Bohannon, D.D.S., M.D., stating that the fractures were reduced "improperly" and recommending corrective surgery, and a letter written in October 2000 by Voltaire Sambajon, D.D.S., M.D., stating that the plates and screws were impinging on a nerve and should be removed. See Pl.'s Denkler Exhs. I, N. Although neither letter directly states that Dr. Denkler did anything wrong, it could reasonably be inferred from the letters that Dr. Denkler made mistakes in inserting the plates. Although these letters contradict Dr. Denkler's evidence that he performed the surgery correctly, this dispute is not material to the question of deliberate indifference. To the extent the plates may have been improperly inserted, there is no evidence that the error would amount to anything more than negligence. See id. (holding negligence does not constitute deliberate indifference). The undisputed evidence shows that Dr. Denkler took numerous reasonable steps to abate the risk of harm from plaintiffs broken jaw: he performed surgery, prescribed antibiotics during the surgery, ordered follow-up pain medication and monitoring, ordered a liquid diet, and conducted a follow-up examination one month later, at which time he removed the wires, ordered x-rays, referred plaintiff to a dentist for further care, continued plaintiff on a liquid diet and requested that he be called if any problems arose. See Bui Exh. 1 at 20. Under the circumstances, Dr. Denkler's conduct does not amount to deliberate indifference, even if there was some negligence in the manner in which he inserted the plates.
Dr. Denkler's exhibits are attached to the Declaration of Corinna Meissner filed in support of Dr. Denkler's motion.
Plaintiff provides excerpts from his own personal diary where he noted that a surge on, Dr. Shaw, who examined plaintiff at the California Medical Facility believed that Dr. Denkler had used the wrong plates and that a screw was impinging on a tooth. See Pl.'s Exh L (Denkler). However, plaintiff does not provide any admissible evidence showing that Dr. Shaw in fact made these purported findings, such as a letter, a declaration or notations in plaintiff's medical records by Dr. Shaw.
Plaintiff submitted two sets of exhibits supporting his two oppositions. The exhibits filed in support of the opposition to Dr. Denkler's motion will be identified as "Pl.'s Denkler Exh", and the exhibits filed in support of the opposition to Dr. Bui's motion will be identified as "Pl.'s Bui Exh."
Dr. Bui's exhibits are attached to the declaration of Scott Mather filed in support of Bui's motion.
Plaintiff also complains that Dr. Denkler did not remove the plates one month after their installation. The only evidence plaintiff provides that removal of the plates was medically required at that time is Dr. Denkler's surgery report in which, according to plaintiff, Dr. Denkler states that he planned to remove the plates after one month. See Pl.'s Denkler Exh. B. Plaintiff misreads this report. In his surgery report, Dr. Denkler states that he "planned to leave [the plates] in, in intermaxillary fixation for one month." See id. "Intermaxillary fixation" refers to wiring the jaw shut. The entry in Dr. Denkler's report is most reasonably read to refer to removal of the wires, not the plates, after one month, a plan verified and approved by Drs. Gradinger and Schendel. See Denkler Exhs. C ¶ 7, D ¶ 7. Indeed, as "planned," Dr. Denkler did remove the wires one month after the surgery. In any event, plaintiff has failed to provide any evidence that leaving the plates in place was medically unacceptable.
Plaintiff also argues that Dr. Denkler failed to notice and treat an infection at the follow-up examination on June 2, 1998. Defendants provide evidence, from Drs. Gradinger and Schendel, that Dr. Denkler's conduct at the follow-up examination was medically sound. See Denkler Exhs. C ¶ 9, D ¶ 9. Plaintiff does not produce sufficient evidence to refute this. While there is evidence that plaintiff had swelling on May 18, 1998 and on June 9, 1998, and that he developed an infection in late June 1998, there is insufficient evidence that plaintiff actually had an infection in early June, at the time of the follow-up examination. In the opinion of Drs. Gradinger and Schendel, those problems arose subsequent to the time of Dr. Denkler's treatment. See id. ¶ 10. Even if the fact of plaintiff's subsequent infection could give rise to an inference that he had an infection earlier, and specifically on the day of the follow-up appointment, there is no evidence that Dr. Denkler should have seen and treated it. The only medical evidence regarding the follow-up appointment is that Dr. Denkler made a medically appropriate assessment that plaintiff was healing well at that time, especially in light of the x-ray taken the following day, which showed that the jaw was properly aligned. See id. at ¶ 9. As a result, there is no genuine issue of material fact as to whether Dr. Denkler's conduct at the follow-up examination constituted deliberate indifference.
As plaintiff has failed to present sufficient evidence from which a reasonable trier of fact could find that Dr. Denkler was deliberately indifferent to plaintiffs serious medical needs in connection with either the surgery or follow-up examination, Dr. Denkler is entitled to summary judgment on plaintiffs claims against him.
D. Defendant Bui
Dr. Bui, the physician who treated plaintiff while he was at San Quentin after the surgery, moves for summary judgment on the ground that plaintiff has failed to create a genuine issue of material fact as to whether Dr. Bui was deliberately indifferent to plaintiffs serious medical needs.
Plaintiff claims that Dr. Bui failed to prescribe antibiotics immediately following surgery, to prevent an infection. Approximately six weeks after the surgery, when plaintiff was transferred to Monterey County Jail, he was diagnosed with an infection in the area of his surgery and given antibiotics. See Pl.'s Bui Exh. H. As explained above, deliberate indifference may be established by defendant's failure to take reasonable steps to abate a substantial risk of harm. See Farmer, 511 U.S. at 837 (1994). If the defendant's failure to act is medically unacceptable, this would suffice to establish deliberate indifference. See Jackson, 90 F.3d at 332. Dr. Bui explains in his declaration that he deferred to the decision of plaintiffs surgeon, Dr. Denkler, who did not prescribe antibiotics after the surgery. See Bui Decl. ¶ 4. Dr. Bui also states that he did not question this decision because it was consistent with his own medical opinion, that preventative antibiotics were not necessary following this type of surgery. See id. Dr. Bui's opinion that antibiotics were not medically required at that time is supported not only by Dr. Denkler's decision not to prescribe post-operative antibiotics, but also by two oral surgeons, Dr. Gradinger and Dr. Schendel, who both state that preventative antibiotics were not necessary. See Denkler's Exhs. C ¶ 8, D ¶ 8. Plaintiff was given antibiotics during surgery. See Denkler's Exhs. C ¶ 8, D ¶ 8. Plaintiff presents no evidence that Dr. Bui's failure to prescribe antibiotics after the surgery was medically unacceptable. Plaintiffs own lay opinion contradicting the expert opinions of Dr. Bui and the other physicians cannot support a finding that Dr. Bui was deliberately indifferent. See Franklin, 662 F.2d at 1344. Plaintiff also submits an excerpt from a medical treatise, which states that antibiotics are usually prescribed when there is a "compound fracture" of the jaw, i.e., "one that extends through a tooth or its socket and opens to a contaminated area, such as the mouth." See Pl.'s Bui Exh. E. There is no evidence, however, that plaintiffs fracture was compound. Finally, the fact that plaintiff later developed an infection, though regrettable, does not by itself indicate that Dr. Bui made a medically unacceptable decision to not prescribe antibiotics preemptively.
Plaintiff makes two additional complaints about Dr. Bui's treatment. First, plaintiff states that Dr. Bui failed to diagnose an infection on May 18, 1998, when there was swelling in plaintiffs mouth. During that period, following the surgery on May 3, 1998, Dr. Bui and his staff at San Quentin were continuously monitoring plaintiff and following Dr. Denkler's orders regarding plaintiffs liquid diet and pain medication. See Pl.'s Bui Exhs. C, D. There is no evidence that there was in fact an infection at that time; the reported swelling on May 18, 1998 was "mild," and plaintiffs own evidence reveals that some swelling is in fact a normal consequence of jaw surgery and does not necessarily mean there is an infection. See Pl.'s Bui Exhs. E, F at 1. Plaintiff also complains that Dr. Bui never provided him with bone wax for the wires despite Dr. Denkler's orders to do so. Plaintiffs evidence reveals, however, that Dr. Denkler only ordered bone wax "as needed," and there is no evidence that bone wax was ever in fact needed. See Pl.'s Bui Exh. C. Plaintiff has failed to present sufficient evidence to support a finding that Dr. Bui failed to take reasonable steps to abate the risk of harm in either of these two instances.
The evidence presented by defendants indicates that Dr. Bui provided adequate medical care to plaintiff overall. Plaintiffs medical records reveal that, after returning to San Quentin following surgery, he received virtually daily medical attention from medical staff under the supervision of Dr. Bui. See Pl.'s Bui Exh. D; Bui Exh. 1. This level of monitoring continued for two months after plaintiff returned to San Quentin in September 1998. See id. In June 1998 and September 1998, Dr. Bui ordered x-rays, which revealed no problems from plaintiffs surgery. See Bui Exh. 1 at 21, 37. When plaintiff complained of swelling in his mouth, Dr. Bui followed San Quentin procedure for such complaints and referred him to the dental department. See id. at 22-23. In fact, when Dr. Bui found an infection, upon plaintiffs return to San Quentin in September 1998, Dr. Bui prescribed antibiotics to treat the infection and again referred plaintiff to the dental department. See id. at 27-34. These undisputed facts evidence a substantial level of care that precludes a finding of deliberate indifference. Accordingly, Dr. Bui is C entitled to summary judgment on plaintiffs claims against him.
Plaintiff claims that one of these x-rays was taken by an inmate and therefore was not reliable. Plaintiff offers no evidence that the person taking the x-ray in question was in fact an inmate, or that the x-ray was deficienet in any manner. In any event, the x-ray was evaluated by a radiologist. See Pl.'s Bui Exh. F.
0n each occasion, the dental department examined plaintiff for infection and referred him to an oral surgeon for further treatment See Bui Exh. 1 at 23-26, 31-34.
In light of this conclusion, the Court need not reach defendant's argument that he is entitled to qualified immunity.
CONCLUSION
In light of the foregoing, the respective motions for summary judgment filed by defendants Denkler and Bui are hereby GRANTED.
This order terminates Docket Nos. 92, 100, 113 and 114.
All pending motions are terminated.
The clerk shall close the file.
IT IS SO ORDERED.