Baker v. Hale

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 JAMALL BAKER, 9 Plaintiff, Case No. C22-1672-LK-MLP 10 v. REPORT AND RECOMMENDATION 11 LAURA LEE HALE, et al., 12 Defendants. 13 14 I. INTRODUCTION 15 This is a prisoner civil rights action proceeding under 42 U.S.C. § 1983. Plaintiff Jamall 16 Baker is in the custody of the Washington State Department of Corrections (“DOC”) and is 17 currently confined at the Monroe Corrections Complex (“MCC”) in Snohomish County, 18 Washington. Plaintiff alleges in his Amended Complaint (Am. Compl. (dkt. # 5)) violations of 19 federal and state law arising from the provision of purportedly inadequate dental care. 20 Defendants in this action are three dentists who provided dental care to Plaintiff at MCC between 21 2016 and 2023: Dr. Laura Lee Hale, Dr. Valerie Weber, and Dr. James Hoag (collectively, 22 “Defendants”). 23 1 Before the Court is Defendants’ Motion for Summary Judgment (Mot. (dkt. # 36)), 2 seeking dismissal of all claims against all Defendants, and Plaintiff’s Motion to Exclude 3 Defendants’ Rebuttal Expert Richard A. Williamson (dkt. # 41). Having considered the parties’ 4 submissions, the balance of the record, and the governing law, the Court concludes that 5 Defendants’ Motion (dkt. # 36) should be granted and that Plaintiff’s Amended Complaint (dkt. 6 # 5) and this action should be dismissed with prejudice as to Plaintiff’s federal claims and 7 without prejudice as to Plaintiff’s state law claims, and that Plaintiff’s Motion to Exclude (dkt. 8 # 41) should be denied as moot, as further explained below. 9 II. BACKGROUND 10 A. Factual History 11 Plaintiff’s claims stem from dental treatments performed by Defendants while Plaintiff 12 was incarcerated at MCC. Prior to the events giving rise to this lawsuit, Plaintiff suffered from 13 dental issues that required him to receive a partial set of lower dentures unrelated to this action. 14 (See Mot. at 2; Am. Compl. at ¶ 3.1.) Later, Plaintiff would require more teeth extractions from 15 his upper left mouth in 2017—this procedure and related issues form the basis of Plaintiff’s 16 claims. (See First Yancey Decl. (dkt. # 37) at ¶ 26, Ex. X; Am. Compl. at ¶ 3.1.) The parties do 17 not appear to contest whether the extractions themselves were medically necessary, but instead 18 dispute whether the extractions’ performance and related aftercare were deficient. 19 i. Dr. Laura Lee Hale’s Care 20 Dr. Hale was a dentist at MCC between June 2016 and September 2019. (Hale Dep. (First 21 Yancey Decl. at ¶ 16, Ex. N) at 10.) On June 28, 2017, Dr. Hale extracted five teeth from 22 Plaintiff’s upper left mouth in order to prepare him for a denture. (Id. at 22; see First Yancey 23 Decl., Ex. X at 3.) Plaintiff testified that Dr. Hale “had a difficult time extracting the teeth” 1 (Baker Dep. (First Yancey Decl. at ¶ 3, Ex. A) at 27-28), while Dr. Hale testified that she 2 successfully completed the extractions and prepared Plaintiff for a denture by removing and 3 smoothing the bone in his mouth. (Hale Dep. at 23-24, 27-28.) Plaintiff testified that he was in 4 continuous pain after this procedure, and that he believed Dr. Hale removed too much bone from 5 his mouth. (Baker Dep. at 32-37.) Plaintiff also testified that a portion of his mouth felt “bumpy” 6 after the procedure, like “[b]one sticking out.” (Id. at 33-34.) 7 Dr. Hale examined Plaintiff one week later in July 2017 and noticed the surgical area was 8 red and tender but did not notice any bony protuberances in Plaintiff’s mouth. (Hale Dep. at 9 28-30; see First Yancey Decl., Ex. X at 3.) A bony protuberance is a small protrusion of bone 10 that can occur after a patient’s mouth is prepared for dentures. (Hill Dep. (First Yancey Decl. at 11 ¶ 4, Ex. B) at 42-43.) A protuberance can cause pain, especially if dentures are worn over it, 12 though dentures may also be adjusted to accommodate protuberances and provide better comfort 13 to patients. (Id. at 44-45.) Dr. Hale testified that redness and tenderness are common side effects 14 after this surgery and that Plaintiff appeared to be in the “normal healing process,” and 15 recommended that Plaintiff continue with denture fabrication. (Hale Dep. at 28-30.) Dr. Hale 16 examined Plaintiff again approximately one week later on July 13, 2017, and noted that the 17 surgical area was “more pink and less red.” (Id. at 30-31.) Dr. Hale saw Plaintiff again on August 18 16, 2017, and noted a “small roughness at upper left deep vestibule,” but testified that otherwise 19 Plaintiff’s “healing [was] very nice.” (Hale Dep. at 32-33.) 20 Based on Dr. Hale’s referral, denturist David Hill saw Plaintiff in August 2017 to take 21 impressions and bite registrations to fabricate dentures for Plaintiff. (Hill Dep. at 29, 31-32.) Mr. 22 Hill was an outside specialist contracted by the DOC to provide denturist services to inmates, 23 and only visited MCC once per month. (Id. at 18, 28, 80, 95.) Plaintiff received his newly 1 fabricated dentures from Mr. Hill on September 14, 2017. (Id. at 32.) After a patient receives 2 dentures, it is common that the dentures need periodical adjustments to better fit the patient’s 3 mouth, especially as the patient’s mouth continues to heal and “remodel” following the teeth 4 extractions. (Id. at 54.) As mentioned above, sometimes a painful bony protuberance can develop 5 in the patient’s mouth during healing, which may be accommodated by adjustments to the 6 denture, resolve on its own, or necessitate removal. (Id. at 43-45.) 7 In late October 2017, Plaintiff filed several grievances regarding severe pain at the site of 8 Dr. Hale’s extractions. (Krulewitch Decl. (dkt. # 46) at ¶ 5, Ex. 3 at 2-4.) Dr. Hale reviewed the 9 grievances and, believing Plaintiff was suffering from a sore spot and difficulty adjusting to the 10 denture, recommended that she examine Plaintiff. (Hale Dep. at 33-36.) Plaintiff was scheduled 11 to see Dr. Hale on November 1, 2017, but Plaintiff refused to attend this appointment. (First 12 Yancey Decl. at ¶ 27, Ex. Y; see Baker Dep. at 38.) On November 17, 2017, Mr. Hill saw 13 Plaintiff, who complained of sore spots and gagging from the dentures. (Hill Dep. at 33.) Mr. 14 Hill adjusted Plaintiff’s dentures to address both issues. (Id.) Mr. Hill again adjusted Plaintiff’s 15 dentures on December 29, 2017. (First Yancey Decl. at ¶ 28, Ex. Z.) Plaintiff was scheduled to 16 see Mr. Hill again on January 26, 2018, but Plaintiff canceled his appointment and was told to 17 reschedule when he was ready. (Hill Dep. at 35.) On February 23, 2018, Mr. Hill saw Plaintiff 18 again, adjusted Plaintiff’s denture, and delivered the adjusted denture to Plaintiff on March 23, 19 2018. (Krulewitch Decl. at ¶ 4, Ex. 2 at 54-55.) 20 Plaintiff next sought dental care for this issue almost a year later in January 2019, when 21 he filed grievances complaining of pain at the site of Dr. Hale’s surgery. (Krulewitch Decl., Ex. 22 2 at 133-35.) Dr. Hale saw Plaintiff on January 14, 2019, and she noted that Plaintiff had a 23 “small raised firm area” at the site of his extraction surgery. (First Yancey Decl. at ¶ 18, Ex. P.) 1 Plaintiff reported pain when the denture was loose or removed, but no pain when the denture was 2 in place. (Id.) In response, Dr. Hale smoothed part of the denture’s surface and recommended 3 further denture adjustments at an upcoming appointment with Mr. Hill. (Id.) Dr. Hale testified 4 that she offered to perform a procedure to remove the raised area at the site of the prior surgery, 5 but Plaintiff refused. (Hale Dep. at 40-41.) 6 Plaintiff filed another grievance again complaining of pain on February 17, 2019. (First 7 Yancey Decl. at ¶ 30, Ex. BB.) However, Plaintiff withdrew this grievance several days after 8 filing it. (Id.; see Baker Dep. at 51.) On June 27, 2019, Plaintiff was scheduled with Mr. Hill to 9 adjust his dentures, but Plaintiff canceled because he had an extended family visit. (First Yancey 10 Decl. at ¶ 6, Ex. D.) Plaintiff was rescheduled to be seen on July 25, 2019, but again canceled, 11 this time due to a religious ceremony. (First Yancey Decl. at ¶ 5, Ex. C.) Plaintiff saw Mr. Hill 12 for adjustments on August 22, 2019, September 26, 2019, November 21, 2019, January 30, 2020, 13 and February 27, 2020. (Krulewitch Decl. at ¶ 7, Ex. 5 at 16-20.) 14 Based on medical records, Dr. Hale last consulted with Plaintiff on March 11, 2019, 15 when he declined to receive a filling. (Krulewitch Decl., Ex. 2 at 31.) Dr. Hale transferred from 16 MCC to work at a different correctional facility in September 2019. (Hale Dep. at 19.) In 17 October 2019, Plaintiff filed a lawsuit against Dr. Hale, among others, in Thurston County 18 Superior Court alleging state medical malpractice claims based on Dr. Hale’s 2017 teeth 19 extractions. See Jamall S. Baker v. Laura L. Hale, et al., Case No. 19-2-05269-34 (Thurston Cty. 20 Super. Ct.).1 21 22 23 1 Plaintiff voluntarily dismissed this lawsuit in March 2022 and filed the present case in November 2022. (See dkt. # 1.) 1 ii. Dr. Valerie Weber’s Care 2 Dr. Weber began working with the DOC at MCC in 2002, and first saw Plaintiff on 3 November 6, 2019, for a limited examination. (Weber Dep. (First Yancey Decl. at ¶ 19, Ex. Q) at 4 9-10, 28, 31, 79-81.) Dr. Weber typically treated patients in a separate unit at MCC than the unit 5 where Plaintiff was incarcerated, and as a result was not familiar with Plaintiff. (Id. at 28-29, 6 32-33.) However, the treating dentist in Plaintiff’s unit fell ill, so Dr. Weber treated patients, 7 including Plaintiff, that were previously assigned to him. (Id.) As a result, Plaintiff saw Dr. 8 Weber at the clinic in Dr. Weber’s unit. (Id.) Plaintiff’s dental records were kept onsite at the 9 clinic in his unit, and Dr. Weber was unable to access them during his visit. (Id. at 28-29, 32-33, 10 39.) 11 At this visit, Plaintiff complained of an “ulcer” and pain in his mouth. (Weber Dep. at 12 32.) Upon examination, Dr. Weber found a “sore spot” where his upper left dentures rubbed 13 against his mouth. (Id. at 32-33) Dr. Weber recommended that Plaintiff remove his dentures at 14 night and when he did not otherwise need them for eating and visits. (Id.) Dr. Weber also 15 prescribed two lidocaine mouthwashes to help heal Plaintiff’s sore spot and referred Plaintiff to 16 Mr. Hill to have his denture adjusted. (Id. at 32-33, 81-82) As mentioned above, Dr. Weber did 17 not review Plaintiff’s medical records before treating him because they were kept in another unit. 18 (Id. at 28-29, 32-33.) Accordingly, Dr. Weber testified that she did not know how long Plaintiff 19 had been suffering from the sore spot. (Id. at 33-34.) Similarly, Dr. Weber testified that when she 20 treated Plaintiff, she was unaware of the teeth extractions and denture adjustments performed by 21 Dr. Hale and Mr. Hill, respectively. (Id. at 37.) 22 Dr. Weber next saw Plaintiff in June, August, and September 2022 to extract two teeth 23 unrelated to Plaintiff’s prior issues. (Weber Dep. at 43-47.) Plaintiff did not complain to Dr. 1 Weber about his upper left extraction site or accompanying denture during any of these 2 appointments. (Id. at 50.) Again, Dr. Weber did not review Plaintiff’s dental records prior to 3 treating him and was unaware of his history. (Id. at 50-51.) 4 Dr. Weber saw Plaintiff again in December 2022 and recommended that he receive new 5 sets of dentures because his existing dentures were five years old and in need of replacement. 6 (Weber Dep. at 53-55.) Dr. Weber does not appear to have treated Plaintiff after this and retired 7 from the DOC in June 2023. (See Weber Dep. at 9.) 8 iii. Dr. James Hoag’s Care 9 Dr. Hoag was a dentist for the DOC beginning in 2016 and was transferred to MCC on 10 December 3, 2019. (Hoag Decl. (First Yancey Decl. at ¶ 9, Ex. G) at ¶ 5; Hoag Dep. (First 11 Yancey Decl. at ¶ 24, Ex. V) at 7-8.) Dr. Hoag examined Plaintiff on January 15, 2020, in 12 response to Plaintiff’s complaint of an upper left denture sore. (First Yancey Decl. at ¶ 11, Ex. I; 13 see Hoag Dep. at 20-21.) Dr. Hoag noted that Plaintiff’s upper left denture “overextended”— 14 meaning it “was made too big and was rubbing on the gumline”—and recommended that 15 Plaintiff’s denture be fitted with a “soft liner” to prevent sore spots from occurring. (Id.) 16 Dr. Hoag saw Plaintiff again on March 4, 2020, and noted a bony protuberance in his 17 upper left area. (Hoag Dep. at 39.) Dr. Hoag believed that the protuberance could be 18 accommodated by Plaintiff’s upper denture and that its removal was unnecessary. (Id. at 39-40, 19 60.) Nevertheless, Dr. Hoag next saw Plaintiff on July 15, 2020, to consult on removing the 20 protuberance that Plaintiff believed was causing pain at the site of his upper left denture. (Hoag 21 Dep. at 40-41, 44; Krulewitch Decl., Ex. 2 at 35.) However, Plaintiff refused to consent to the 22 procedure, questioned Dr. Hoag’s qualifications, and stated that he needed to consult with his 23 1 attorney. (Id.; see Krulewitch Decl., Ex. 2 at 118.) As a result, Dr. Hoag did not move forward 2 with the procedure to remove Plaintiff’s protuberance. (Hoag Dep. at 40-44, 60.) 3 Plaintiff complained approximately five weeks later on August 22, 2020, again 4 communicating that he agreed to consent to the procedure to remove the protuberance because 5 his counsel “informed me that I have a duty to mitigate.” (Hoag Dep. at 44-45; Krulewitch Decl., 6 Ex. 2 at 120.) However, when Dr. Hoag saw Plaintiff on August 26, 2020, to consult on the 7 procedure, Plaintiff stated that he was only consenting to the procedure “under duress”—a 8 statement that he repeated in writing on the procedure’s consent form. (Id.; First Yancey Decl. at 9 ¶ 29, Ex. AA.) Dr. Hoag did not perform the procedure. (Hoag Dep. at 60; First Yancey Decl., 10 Ex. AA.) 11 At some point later in 2020, Plaintiff reconsidered and agreed to have the procedure 12 performed.2 (Hoag Decl. at ¶ 10; Krulewitch Decl. at ¶ 10, Ex. 8 at 10.) After agreeing to the 13 procedure and being told that he would be placed back on the inmates’ treatment list (Krulewitch 14 Decl., Ex. 8 at 10), Plaintiff complained again regarding pain at the site of his upper left dentures 15 on or around December 14, 2020 (id. at 12), December 22, 2020 (id. at 14), December 29, 2020 16 (id. at 13), and January 11, 2021 (id. at 15). Dr. Hoag testified that he was unable to perform the 17 procedure until January 2021, due to limited staff, clinic closings, and yard closings resulting 18 from the COVID-19 pandemic. (Hoag Decl. at ¶ 11; Hoag Dep. at 49; Krulewitch Decl., Ex. 8 at 19 15.) On January 27, 2021, Dr. Hoag removed a bony protuberance from the site of Plaintiff’s 20 upper left dentures. (Id.) While Plaintiff alleges that he continues to suffer pain from Defendants’ 21 2 The record is unclear as to exactly when Plaintiff consented to this procedure. Dr. Hoag’s declaration 22 states that Plaintiff agreed to the procedure in August 2020. (Hoag Decl. at ¶ 10.) However, records submitted with Plaintiff’s Response suggest that Plaintiff did not consent to his procedure until November 23 11, 2020. (Krulewitch Decl., Ex. 8 at 10 (“I have a duty to mitigate. Therefore, I will allow you to remove the bone that causes me pain.”).) 1 actions, Plaintiff does not appear to allege any specific wrongdoing that occurred after this 2 procedure. (See Am. Compl. at ¶¶ 3.21-24.) 3 Plaintiff complained of pain again on February 15, 2021, and was told that this was a 4 symptom of his recovery from surgery, which occurred less than three weeks earlier. (Krulewitch 5 Decl., Ex. 8 at 18.) On April 8, 2021, Plaintiff was seen by Mr. Hill, who reported that Plaintiff 6 was “pleased,” had “good suction” on his dentures, and experienced “no pain.” (Id., Ex. 8 at 3.) 7 Plaintiff continued to be seen by DOC dentists to address the fit of his dentures, unrelated teeth 8 removals by Dr. Weber as discussed above, and a bone spur in the upper left. (See, e.g., First 9 Yancey Decl. at ¶¶ 7-8, 20-23, Exs. E, F, R, S, T, U.) Dr. Hoag retired on September 15, 2021. 10 (Hoag Decl. at ¶ 5; see First Yancey Decl. at ¶ 10, Ex. H.) 11 B. Plaintiff’s Claims 12 Plaintiff’s Amended Complaint asserts three causes of action against Defendants. The 13 first two are claims under 42 U.S.C. § 1983 for violations of Plaintiff’s rights under the Eighth 14 Amendment. (Am. Compl. at 8-9.) Plaintiff alleges that Defendants violated his rights by 15 providing him with deficient dental care and failing to protect him from pain and injuries 16 stemming from his dental condition.3 (Id.) The third cause of action is a state law tort claim for 17 dental malpractice, which alleges that Defendants were negligent in providing deficient dental 18 care to Plaintiff. (Id. at 9-10.) Plaintiff seeks an unspecified amount for compensatory and 19 punitive damages, attorney’s fees, and costs. (Id. at 10.) 20 21 22 3 While the Amended Complaint presents two separate causes of action under § 1983, both are derived 23 from Defendants’ provision of allegedly deficient dental care. (Am Compl. at 8-9.) Plaintiff does not assert that Defendants were responsible for any conditions of his confinement beyond the care they provided as dentists. (Id.) 1 Defendants moved for summary judgment on July 25, 2024, to which Plaintiff filed a 2 Response (Resp. (dkt. # 45)), and Defendants filed a Reply (dkt. # 49). Neither party requested 3 oral argument. 4 III. DISCUSSION 5 A. Standard of Review 6 Summary judgment is proper when the “movant shows that there is no genuine dispute as 7 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 8 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party is entitled to 9 judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an 10 essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. 11 Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of showing the 12 Court “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. 13 The moving party can carry its initial burden by producing affirmative evidence that negates an 14 essential element of the nonmovant’s case or by establishing that the nonmovant lacks the 15 quantum of evidence needed to satisfy its burden at trial. Nissan Fire & Marine Ins. Co., Ltd. v. 16 Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden then shifts to the nonmoving 17 party to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio 18 Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable inferences in favor of the 19 nonmoving party. Id. at 585-87. 20 Genuine disputes are those for which the evidence is such that a “reasonable jury could 21 return a verdict for the nonmoving party.” Anderson, 477 U.S. at 257. It is the nonmoving party’s 22 responsibility to “identify with reasonable particularity the evidence that precludes summary 23 judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoted source omitted). The 1 Court need not “scour the record in search of a genuine issue of triable fact.” Id. (quoted source 2 omitted); see also Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but 3 it may consider other materials in the record.”). Nor can the nonmoving party “defeat summary 4 judgment with allegations in the complaint, or with unsupported conjecture or conclusory 5 statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); see 6 McElyea v. Babbitt, 833 F.2d 196, 197-98 n.1 (9th Cir. 1987) (per curiam). 7 B. Section 1983 Claims 8 A § 1983 plaintiff must show that (1) he suffered a violation of rights protected by the 9 Constitution or created by federal statute, and (2) the violation was proximately caused by a 10 person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 11 1991). Section 1983’s causation requirement is satisfied only if a plaintiff demonstrates that a 12 defendant did an affirmative act, participated in another’s affirmative act, or omitted to perform 13 an act which he was legally required to do that caused the deprivation complained of. Arnold v. 14 Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981) (citing Johnson v. Duffy, 588 F.2d 15 740, 743-44 (9th Cir. 1978)). “The inquiry into causation must be individualized and focus on 16 the duties and responsibilities of each individual defendant whose acts or omissions are alleged 17 to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 18 The Eighth Amendment imposes a duty upon prison officials to provide humane 19 conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). This duty includes 20 ensuring that inmates receive adequate food, clothing, shelter, medical care, including dental 21 care, and taking reasonable measures to guarantee the safety of inmates. Id.; Hunt v. Dental 22 Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (“[T]he eighth amendment requires that prisoners be 23 provided with a system of ready access to adequate dental care.”). To establish an Eighth 1 Amendment violation for inadequate care under § 1983, a plaintiff must demonstrate that he had 2 a “serious medical need,” and that the defendants’ response to that need was deliberately 3 indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 4 A prison official is deliberately indifferent to a serious medical need if she “knows of and 5 disregards an excessive risk to inmate health.” Farmer, 511 U.S. at 837. To be found liable under 6 the Eighth Amendment, “the official must both be aware of facts from which the inference could 7 be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. 8 “If a [prison official] should have been aware of the risk, but was not, then the [official] has not 9 violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cnty. of Washoe, 290 10 F.3d 1175, 1188 (9th Cir. 2002). 11 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 12 1060 (9th Cir. 2004). An inadvertent or negligent failure to provide adequate medical care is 13 insufficient to establish a claim under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 14 103, 105-06 (1976); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (“Mere medical 15 malpractice does not constitute cruel and unusual punishment.”). Differences of opinion between 16 a prisoner and prison medical staff or between medical professionals regarding the proper course 17 of treatment do not give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058. Nor do prison inmates 18 have an “independent constitutional right to outside medical care additional and supplemental to 19 the medical care provided by the prison staff within the institution.” Roberts v. Spalding, 783 20 F.2d 867, 870 (9th Cir. 1986). Instead, “a prisoner must show that the chosen course of treatment 21 ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard 22 of an excessive risk to [the prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (quoting Jackson v. 23 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 1 i. Section 1983 Claims Against Dr. Laura Lee Hale 2 The crux of Plaintiff’s allegations against Dr. Hale is that Plaintiff’s dental condition was 3 too complex for Dr. Hale to handle, that Dr. Hale failed to provide effective treatments, and that 4 she should have referred him to a prosthodontist. (See Resp. at 7-10). Plaintiff argues that Dr. 5 Hale did “nothing . . . to determine why [Plaintiff] was having this pain and, what could be done 6 to alleviate his pain,” drawing a comparison to Hunt v. Dental Department, where the Ninth 7 Circuit held that knowingly denying necessary dental care could state a claim under § 1983.4 8 (Resp. at 9-10 (citing Hunt, 865 F.2d at 200).) But Plaintiff’s circumstances are inapposite to 9 Hunt because Plaintiff received medically acceptable dental care from Dr. Hale and the other 10 Defendants. While “[t]he provision of some medical treatment, even extensive treatment over a 11 period of years, does not immunize officials from the Eighth Amendment’s requirements,” 12 Plaintiff has not provided material evidence that his dental care was medically unacceptable, or 13 identified any instances where he complained and was not seen by MCC dental staff. See Edmo 14 v. Corizon, Inc., 935 F.3d 757, 793 (9th Cir. 2019). 15 Rather, Plaintiff was dissatisfied with the care that was delivered to him, and his 16 Response relies heavily on expert opinions of Dr. Jay D. Schulman to argue that Defendants fell 17 below the standard of care and should have referred Plaintiff to a prosthodontist. (See Second 18 Yancey Decl. (dkt. # 50) at ¶ 4, Ex. CC.) Differences of opinion between a prisoner and prison 19 medical staff or between medical professionals regarding the proper course of treatment do not 20 give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058. Likewise, Plaintiff’s desire to see a 21 prosthodontist does not establish a § 1983 claim because Plaintiff does not have an “independent 22 4 Plaintiff’s citation to Hunt includes a purported quotation that, troublingly, is absent from that opinion. 23 (See Resp. at 9-10 (“leaving a person in pain for any prolonged period of time without treatment, if the defendant knows the person is in pain, does state a claim.”).) Plaintiff’s counsel is reminded of their duty of candor to the Court. 1 constitutional right to outside medical care additional and supplemental to the medical care 2 provided by the prison staff within the institution.” See Roberts, 783 F.2d at 870. Dr. Hale’s 3 treatment decisions, including the decision not to refer Plaintiff to a prosthodontist, do not 4 represent cruel and unusual punishment. See Estelle, 429 U.S. 97, 107 (1976) (“[T]he question 5 whether . . . forms of treatment [are] indicated is a classic example of a matter for medical 6 judgment.”). “At most it is medical malpractice, and as such the proper forum is the state court.” 7 See id. 8 Plaintiff also fails to identify any evidence showing that Dr. Hale had the subjective 9 knowledge required to be deliberately indifferent to Plaintiff’s medical needs. In fact, Plaintiff’s 10 own expert opined that “Dr. Hale negligently failed to recognize that the bone at Mr. Baker’s 11 surgical site could not accommodate a well-fitted denture fabricated by a denturist after she 12 surgically removed [Plaintiff’s] teeth.” (Second Yancey Decl., Ex. CC at 4.) If Dr. Hale “failed 13 to recognize” Plaintiff’s purported dental issues, she did not have the subjective knowledge 14 necessary to find deliberate indifference. See Farmer, 511 U.S. at 837 (“[T]he official must both 15 be aware of facts from which the inference could be drawn . . . and [s]he must also draw the 16 inference.”). Simply knowing that Plaintiff had “a difficult case,” as Plaintiff asserts, does not 17 amount to a constitutional violation. Nor does Plaintiff’s assertion that Dr. Hale’s “course of 18 treatment was below accepted professional standards” (Resp. at 7), preclude dismissal of his 19 § 1983 claims since “[a] showing of medical malpractice or negligence is insufficient to establish 20 a constitutional deprivation under the Eighth Amendment.” Toguchi, 391 F.3d at 1060. 21 Accordingly, Plaintiff’s § 1983 claims against Dr. Hale should be dismissed. 22 23 1 ii. Section 1983 Claims Against Dr. Valerie Weber 2 Plaintiff’s allegations against Dr. Weber—that she failed to review Plaintiff’s medical 3 records, failed to provide Plaintiff with an effective treatment, and failed to refer Plaintiff to a 4 prosthodontist (Resp. at 10)—do not show that Dr. Weber was deliberately indifferent to 5 Plaintiff’s medical needs. According to Plaintiff, Dr. Weber “failed to realize, as a reasonable 6 and prudent dentist would have, that a clinically adequate denture could not be made by a 7 denturist.” (Id. at 10.) But whether Dr. Weber’s “clinical treatment decisions were below the 8 standard of care” (id.) is not relevant to a § 1983 claim. See Toguchi, 391 F.3d at 1060 (“A 9 showing of medical malpractice or negligence is insufficient to establish a constitutional 10 deprivation under the Eighth Amendment.”). 11 Failing to review a patient’s medical records, even if the treating medical professional 12 had access to them, is not deliberate indifference under the Eighth Amendment. See, e.g., 13 Martinez v. United States, 812 F. Supp. 2d 1052, 1059-60 (C.D. Cal. 2010) (finding the prison 14 doctor who prescribed medication to the plaintiff without reviewing his medical file did not act 15 with deliberate indifference because the doctor was not aware the plaintiff was allergic to the 16 medication). Indeed, by allegedly failing to review Plaintiff’s medical records, Dr. Weber would 17 have been ignorant of any medical conditions noted in the records, and therefore would have 18 lacked the knowledge necessary to show she was deliberately indifferent. See id. If, as Plaintiff 19 argues, Dr. Weber “failed to realize” that Plaintiff had a serious medical risk, she again lacked 20 the subjective knowledge to find deliberate indifference. Farmer, 511 U.S. at 837 (“[T]he 21 official must both be aware of facts from which the inference could be drawn that a substantial 22 risk of serious harm exists, and [s]he must also draw the inference.”). 23 1 Furthermore, there is no material evidence that Dr. Weber’s treatment was “was 2 medically unacceptable under the circumstances,” or chosen “in conscious disregard of an 3 excessive risk to [Plaintiff’s] health.” Toguchi, 391 F.3d at 1058 (quotations omitted). Dr. Weber 4 saw Plaintiff for a limited examination during which she addressed Plaintiff’s complaint, 5 recommended further adjustments to Plaintiff’s denture, and prescribed lidocaine mouthwashes 6 to treat Plaintiff’s pain. (Weber Dep. at 32-33, 81-82.) As with Dr. Hale, Plaintiff’s arguments 7 against Dr. Weber improperly rest on differences of opinion regarding the proper course of 8 treatment and a supposed right to see a prosthodontist. See Toguchi, 391 F.3d at 1058; Roberts, 9 783 F.2d at 870. Rather, the undisputed facts show that Dr. Weber lacked the requisite 10 knowledge to be deliberately indifferent, and Plaintiff’s § 1983 claim should be dismissed. 11 iii. Section 1983 Claims Against Dr. James Hoag 12 According to Plaintiff’s expert Dr. Schulman, Dr. Hoag “failed to identify the 13 protuberances . . . as impediments to a clinically acceptable denture” and “failed to realize . . . 14 that fabricating a clinically adequate denture . . . was beyond a denturist’s skillset.” (Resp. at 13 15 (quoting Second Yancey Decl., Ex. CC at 13-14).) As discussed above, “failing to realize” a 16 serious medical need falls short of deliberate indifference. Farmer, 511 U.S. at 837. Plaintiff 17 further argues that if Dr. Hoag had reviewed Plaintiff’s “dental history since 6/28/17, he would 18 have realized . . . that [Plaintiff’s] case was complex . . . and would have requested a consultation 19 with a prosthodontist.” (Resp. at 13.) Again, failing to review medical records does not give rise 20 to deliberate indifference. See Martinez, 812 F. Supp. 2d at 1059-60. Accordingly, Dr. Hoag 21 lacked the requisite mental state to be deliberately indifferent to Plaintiff’s serious medical 22 needs. 23 1 The undisputed facts show that Dr. Hoag provided Plaintiff with significant care. In fact 2 Dr. Hoag removed the bony protuberance that, according to Plaintiff, caused much of his 3 suffering. (Hoag Decl. at ¶ 11; Hoag Dep. at 49.) There is no material evidence that Dr. Hoag’s 4 treatment was medically unacceptable. As discussed above, Plaintiff did not have a constitutional 5 right to see a prosthodontist. See Roberts, 783 F.2d at 870. Differences of opinion between 6 Defendants and Plaintiff’s expert are not the bases of § 1983 claims. Toguchi, 391 F.3d at 1058. 7 Nor is there evidence that the delay in performing that procedure was deliberate or even 8 attributable to Dr. Hoag. Instead, Plaintiff twice—in July and August 2020—refused to consent 9 to the procedure to remove the protuberance. (Hoag Dep. at 40-41, 60.) Records suggest that 10 Plaintiff may not have even consented to the procedure until November 2020 (see Krulewitch 11 Decl., Ex. 8 at 10), and Plaintiff’s procedure was further delayed until January 2021 due to the 12 COVID-19 pandemic. (Hoag Decl. at ¶ 11; Hoag Dep. at 49; Krulewitch Decl., Ex. 8 at 15.) 13 Accordingly, Plaintiff’s § 1983 claims against Dr. Hoag should be dismissed. 14 C. Qualified Immunity 15 Qualified immunity protects government officials from civil liability under § 1983 so 16 long as their conduct does not violate clearly established constitutional or statutory rights of 17 which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009) 18 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “gives government 19 officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the 20 plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 21 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 22 To determine if an official is entitled to qualified immunity, a court must evaluate two 23 independent prongs: (1) whether the official’s conduct violated a constitutional right; and (2) 1 whether that right was clearly established at the time of the incident.” Castro v. County. of Los 2 Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016) (en banc) (citing Pearson, 555 U.S. at 232). Either 3 prong may be considered first. Pearson, 555 U.S. at 236. As discussed above, Plaintiff has not 4 identified material facts showing that Defendants violated his constitutional rights. The Court 5 therefore need not address the second prong of the qualified immunity analysis. 6 D. Medical Malpractice Claims 7 Finally, Plaintiff asserted state law medical malpractice claims against each of the 8 Defendants. (See Am. Compl. at 9.) The Supreme Court has stated that federal courts should 9 refrain from exercising their pendent jurisdiction when the federal claims are dismissed before 10 trial. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Acri v. Varian Assocs., Inc., 114 11 F.3d 999, 1000 (9th Cir. 1997). Trial has not yet been scheduled in this matter. (See dkt. ## 15, 12 24, 29, 31, 35.) Because Plaintiff’s federal claims are subject to dismissal based upon their 13 failure to identify material facts showing a violation of his federal constitutional or statutory 14 rights, this Court should decline to exercise jurisdiction over Plaintiff’s state law claims. 15 E. Motion to Exclude Expert Witness 16 Plaintiff’s Motion to Exclude requests that the Court exclude the opinion of Defendants’ 17 rebuttal expert witness Richard A. Williamson on the grounds that Dr. Williamson’s report is not 18 a proper rebuttal, but rather an initial expert report that was served untimely pursuant to Federal 19 Rule of Civil Procedure 26(a)(2). (Dkt. # 41.) This Court’s recommendation to dismiss Plaintiff’s 20 claims did not rely on Dr. Williamson’s report. Since Plaintiff’s claims should be dismissed, as 21 discussed above, the Court recommends that Plaintiff’s Motion to Exclude should be denied as 22 moot. 23 1 IV. CONCLUSION 2 Based on the foregoing, this Court recommends that Defendants’ Motion (dkt. # 36) be 3 granted, and that Plaintiff’s Amended Complaint (dkt. # 5) and this action be dismissed with 4 prejudice as to Plaintiff’s federal claims and without prejudice as to Plaintiff’s state law medical 5 malpractice claims. This Court further recommends that Plaintiff’s Motion to Exclude (dkt. # 41) 6 be denied as moot. A proposed order accompanies this Report and Recommendation. 7 Objections to this Report and Recommendation, if any, should be filed with the Clerk and 8 served upon all parties to this suit not later than fourteen (14) days from the date on which this 9 Report and Recommendation is signed. Failure to file objections within the specified time may 10 affect your right to appeal. Objections should be noted for consideration on the District Judge’s 11 motions calendar fourteen (14) days from the date they are filed. Responses to objections may 12 be filed by the day before the noting date. If no timely objections are filed, the matter will be 13 ready for consideration by the District Judge on October 2, 2024. 14 The Clerk is directed to send copies of this order to the parties and to the Honorable 15 Lauren King. 16 Dated this 17th day of September, 2024. 17 18 A 19 MICHELLE L. PETERSON United States Magistrate Judge 20 21 22 23