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Norman v. Corizon Healthcare Inc.

United States District Court, D. Arizona

December 30, 2019

Thomas Joseph Norman, Plaintiff,
v.
Corizon Healthcare Incorporated, et al., Defendants.

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Thomas Joseph Norman, who is currently confined in the Arizona State Prison Complex-Eyman, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendants Corizon Healthcare Inc. (“Corizon”), Connie Hawley, Milen Vitanov, [1] and Jeffrey Wight move for summary judgment. (Doc. 31.) Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 33), and he opposes the Motion. (Doc. 37.) The Court will grant the Motion for Summary Judgment.

         I. Background

         On screening the First Amended Complaint (Doc. 13) under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment deliberate indifference claim against Defendants Corizon, LPN Hawley, and dentists Dr. Wight and Dr. Vitanov and ordered them to answer the claim. (Doc. 18.) The Court dismissed the remaining Defendant. (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, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., 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); however, it 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. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3). . . . .

         III. Facts

         In January 2017, Plaintiff began to experience discomfort on his tongue due to a cavity on an upper front tooth. (Doc. 6 (Pl. Decl.) at 2.)[2] Plaintiff sought advice from an outside former dental professional, Dr. Johnson. (Id.) Dr. Johnson advised Plaintiff to submit a Health Needs Request (HNR), describing his condition. (Id.)

         On January 11, 2017, Plaintiff submitted an HNR, stating he had a cavity in his front top tooth that was causing discomfort to his tongue. (Doc. 6-1 at 3.) He requested that cavity be filled to save the tooth. (Id.) The following day, Plaintiff was seen on the nurse's line and requested that the cavity be filled. (Doc. 32 at 7.) He was referred to the dental line. (Id.) On January 13, 2017, Plaintiff submitted an HNR requesting to have “a tooth filled.” (Doc. 6-2 at 1.) The same day, Plaintiff saw Defendant Dr. Wight. (Doc. 32 at 7.) Plaintiff “pointed directly to the decaying tooth (tooth #7), ” which was cutting into his tongue and causing him severe pain and discomfort, and which affected his activities of daily living, including properly chewing, eating, swallowing, and sleeping. (Doc. 37 at 2.)

         According to the Health Services Encounter for the visit, Plaintiff reported that his front tooth “bother[ed] his tongue sometimes, ” but denied tooth pain. (Doc. 32 at 7.) Defendant Wight tested the #7 tooth to determine whether there were acute or chronic abscesses or looseness of the tooth and informed Plaintiff there were none. (Doc. 37 at 2.) Wight did not inform Plaintiff that any other teeth were decayed or needed repair. (Id.) In addition, “they” advised Plaintiff that the tooth could be filled, that he needed to submit an HNR to be placed on the waiting list, and that the typical waiting period was 60 to 90 days. (Doc. 6 at 3.)

         According to the Health Services Encounter, Wight noted deep caries in the #7 and #8 teeth and that “#8 is the tooth [Plaintiff] would like to have done at this time.” (Doc. 32 at 7.) Wight also noted there was some bone loss present. (Id.) Wight “refused” to repair the #7 tooth at that appointment and instead “delayed [and] interfered with the community standard of care” by advising Plaintiff to submit an HNR to schedule another appointment to repair the tooth, forcing Plaintiff to wait an additional 60 to 90 days for treatment. (Id. at 2-3.)

         On January 14, 2017, Plaintiff submitted an HNR requesting a filling. (Doc. 32 at 13.) On March 20, 2017, Plaintiff submitted an HNR requesting an appointment “to have a cavity filled.” (Doc. 6-2 at 3.) The same day, Plaintiff saw Defendant Dr. Vitanov. (Doc. 32 at 15.) Vitanov asked Plaintiff which tooth he wanted repaired, and Plaintiff pointed to the #7 tooth. (Doc. 37 at 3.) Without consulting the x-ray, Vitanov filled the wrong tooth (the #8 tooth). (Id.) Plaintiff informed Vitanov that he had repaired the wrong tooth and asked him to repair the #7 tooth. (Id.) Vitanov “refused to remedy his error” and instead instructed Plaintiff to submit another HNR, forcing him to wait an additional 60 to 90 days to have the correct tooth repaired. (Id.)

         According to the Health Services Encounter, Vitanov noted that Plaintiff had pointed to his #8 tooth and stated that he wanted it fixed. (Doc. 32 at 15.) Vitanov documented that the #8 tooth had gross decay near the pulp, was not sensitive to palpation or percussion, and had 30% bone loss and moderate periodontitis. (Id.) Vitanov also noted that x-rays of the #8 tooth had shown coronal radiolucency near the pulp. (Id.) Vitanov documented that the prognosis for the #8 tooth was “questionable due to gross decay, ” and informed Plaintiff that if the decay was within the nerve, then the tooth would need to be extracted. (Id.) Vitanov noted that Plaintiff “insisted” that he wanted a filling, not an extraction, and Vitanov filled the tooth. (Id. at 15-16.)

         On March 28, 2017, Plaintiff submitted another “more descriptive” HNR, stating that the “wrong tooth” had been filled.[3] (Doc. 6-2 at 5; Doc. 32 at 19; Doc. 38 at 3.) Plaintiff did not receive a response to that HNR. (Doc. 38 at 3.) On June 6, 2017, Plaintiff submitted an Inmate Informal Complaint Resolution, claiming that the wrong tooth had been filled on March 20, 2017, and ...


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