United States District Court, D. Arizona
Candelario H. Ramirez, Plaintiff,
Charles L. Ryan, et al., Defendants.
G. Campbell United States District Judge
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.
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.)
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.)
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.)
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.)
Summary Judgment Standard
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.
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).
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).
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
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