United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
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,  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.
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.
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,
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.
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). . . . .
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.) 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.)
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.)
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.)
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
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.)
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
March 28, 2017, Plaintiff submitted another “more
descriptive” HNR, stating that the “wrong
tooth” had been filled. (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 ...