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Ramirez v. Ryan

United States District Court, D. Arizona

April 30, 2018

Candelario H. Ramirez, Plaintiff,
Charles L. Ryan, et al., Defendants.


          David G. Campbell United States District Judge

         Plaintiff Candelario H. Ramirez, who was formerly in the custody of the Arizona Department of Corrections (ADC), brought this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 5.) Defendants move for summary judgment. The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) regarding the requirements of a response (Doc. 27), but Plaintiff did not file a response.

         I. Background

         In his First Amended Complaint, Plaintiff alleged as follows. On February 15, 2015, Plaintiff went to medical complaining that his jaw was broken. (Doc. 5 at 5.) Dr. Dinkha, the dentist, recommended that Plaintiff be sent to Desert Valley Oral Surgery for repair of a left mandible fracture in his jaw. (Id.) On February 19, 2015, Plaintiff went to Desert Valley Oral Surgery and his jaw was wired shut. (Id.) Plaintiff thought the wires were too loose, reported this to Dr. Dinkha, and she stated that Plaintiff would be seen in a few weeks. (Id.) Because Plaintiff's jaw was wired incorrectly, he developed an abscess and experienced excruciating pain. (Id.) Plaintiff repeatedly requested to be seen by a doctor over the next few weeks as the abscess grew to the size of a tennis ball, became infected, and began to leak puss. (Id.) Plaintiff began to refuse his insulin because he believed this refusal would result in medical care to his jaw. (Id. at 6.)

         On March 12, 2015, Plaintiff was called in to see a dentist. (Id. at 6-7.) On March 16, 2015, a different dentist decided to send Plaintiff for emergency treatment. (Id. at 7.) On March 20, 2015, Plaintiff was transferred to Banner Health Hospital and underwent emergency oral surgery. (Id. at 8.) Plaintiff was then hospitalized at ADC-Florence in a medical unit, where he received treatment for an extended period. (Id.)

         In May of 2016, Plaintiff submitted an HNR requesting treatment for recurring urgent dental problems, abscess, infection, and pain and suffering. (Id. at 9.) In June of 2016, Plaintiff lost consciousness and was sent to “emergency” as a result of continued lack of timely dental treatment. (Id. at 8-9.) Plaintiff alleged that he received constitutionally inadequate medical care and delays in treatment of his dental problems due to policies, practices, or customs instituted by Defendants Ryan and Pratt. (Id.)[1]

         On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment claims based on deliberate indifference to serious medical needs against Defendants Ryan and Pratt. (Doc. 6.) The Court dismissed the remaining claims and Defendants. (Id.)

         II. Summary Judgment Standard

         A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material (a fact that might affect the outcome of the suit under the governing law) and that the dispute is genuine (the evidence is such that a reasonable jury could return a verdict for the nonmovant). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968), but he must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

         At summary judgment, the judge's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The court must believe the nonmovant's evidence and draw all inferences in his favor. Id. at 255. The court need consider only cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

         III. Facts

         Because Plaintiff did not file a response to the Motion for Summary Judgment, the Court will construe Plaintiff's verified First Amended Complaint as an affidavit in opposition to the summary judgment motion. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations in a pro se plaintiff's verified pleadings must be considered as evidence in opposition to summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint may be used as an affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence). But to the extent Plaintiff failed to controvert Defendant's facts in his First Amended Complaint, the Court will assume those facts are uncontroverted for the purposes of this Order. Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (If a summary judgment motion is unopposed, Rule 56 “authorizes the court to consider a fact as undisputed.”).

         On February 16, 2015, Plaintiff was seen by Nurse Practitioner (NP) Smith for pain in his jaw. Plaintiff reported that he was in a fight the day before and that his jaw felt broken. (Doc. 26 ¶ 7.) Plaintiff could open his mouth, but was unable to chew, and an x-ray was consistent with a mandible fracture. (Id. ¶ 7.) Plaintiff was scheduled to see dental the next day. (Id.) On February 17, 2015, Plaintiff was seen by Rommel Dinkha, DDS, who noted that Plaintiff's occlusion was off and that he had a linear laceration between teeth #22 and #23 extending from the buccal to the floor of the mouth lingually; Plaintiff reported pain at 10/10, a soft diet was recommended, medications were provided, and Plaintiff was to be seen ASAP. (Id. ¶ 8.) On February 19, 2015, Plaintiff was seen offsite at Desert Valley Oral Surgery and had surgery for his left mandible fracture. (Id. ¶ 9.) Plaintiff had a closed reduction and arch bars were placed in Plaintiff's mouth; Plaintiff was to wear the arch bars for eight weeks and return for evaluation. (Id.) The ...

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