(PC) Gosztyla v. Ly

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA RICHARD GOSZTYLA, No. 2:21-cv-01717 KJM CKD P 12 Plaintiff, 13 v. ORDER B. LY, et al., 15 Defendants.

17 Plaintiff, a California prisoner proceeding pro se, filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On June 17, 2024, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. F. & R., ECF No. 63. Plaintiff filed objections to the findings and recommendations. Objs., ECF No. 64. Defendant Dr. Berry filed a response to the objections, Resp., ECF No. 65, and plaintiff has replied, Reply, ECF No. 66.

25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. ] Plaintiff argues Dr. Berry was deliberately indifferent to his serious medical needs in || violation of the Eighth Amendment when Dr. Berry used tools available at the prison facility, || rather than utilizing specialized tools used by oral surgeons, to extract plaintiff's dental implant.

4 | See Objs. at 2-3. “To show deliberate indifference, the plaintiff must show that the course of || treatment the doctors chose was medically unacceptable under the circumstances and that the || defendants chose this course in conscious disregard of an excessive risk to the plaintiff's health.”

7 || Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citations, alterations and quotations | omitted). “Eighth Amendment doctrine makes clear that a difference of opinion between a || physician and the prisoner—or between medical professionals—concerning what medical care is || appropriate does not amount to deliberate indifference.” /d. (citations, alterations and quotations || omitted). Here, as the magistrate judge notes, there is no evidence indicating Dr. Berry’s use of || the tools at the facility fell below the acceptable standard of medical care. See F. & R. at 5. Nor | has plaintiff provided evidence that the care he received was medically unacceptable under the || circumstances. Plaintiff's argument that Dr. Berry should have used different tools to extract his | implant shows a difference of opinion concerning what medical care is appropriate—it does not || amount to deliberate indifference.

17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The findings and recommendations (ECF No. 63) are adopted in full; 19 2. Defendant Dr. Berry’s motion for summary judgment (ECF No. 56) is granted; 20 3. Defendant Dr. Berry is dismissed from this action; and 21 4. This matter is referred back to the magistrate judge for all further pretrial proceedings.

22 | DATED: August 16, 2024.

35 CHIEF ED STATES DISTRICT JUDGE