1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD GOSZTYLA, No. 2:21-cv-1717 DC CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 B. LY, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 18 rights under

. On October 24, 2022, the court screened plaintiff’s second 19 amended complaint as the court must do under 28 U.S.C. § 1915A(a). The court found that 20 plaintiff could proceed on claims based on denial of adequate dental care arising under the Eighth 21 Amendment against defendants Dr. Ly, Dr. Archibald and Dr. Berry for damages. Dr. Berry was 22 dismissed on August 19, 2024. Dr. Ly and Dr. Archibald’s motion for summary judgment is 23 before the court. 24 I. Timeliness of Motion 25 Plaintiff asserts the court should deny the pending motion as untimely. The deadline to 26 file the motion was March 18, 2024 (ECF No. 55) and the motion was filed on that day (ECF No. 27 58). The motion is timely. 28 ///// 1 II. Summary Judgment Standard 2 Summary judgment is appropriate when it is demonstrated that there “is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 5 “citing to particular parts of materials in the record, including depositions, documents, 6 electronically stored information, affidavits or declarations, stipulations (including those made for 7 purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R. 8 Civ. P. 56(c)(1)(A). 9 Summary judgment should be entered, after adequate time for discovery and upon motion, 10 against a party who fails to make a showing sufficient to establish an element essential to that 11 party’s case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. 12 Catrett,

(1986). “[A] complete failure of proof concerning an essential element 13 of the nonmoving party’s case necessarily renders all other facts immaterial.”

14 If the moving party meets its initial responsibility, the burden then shifts to the opposing 15 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 16 Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). In attempting to establish the 17 existence of this factual dispute, the opposing party may not rely on the allegations or denials of 18 their pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 19 admissible discovery material, in support of its contention that the dispute exists or show that the 20 materials cited by the movant do not establish the absence of a genuine dispute. See Fed. R. Civ.

(c); Matsushita,

n.11. The opposing party must show that the fact in 22 contention is material, i.e., a fact that might affect the outcome of the suit under the governing 23 law, see Anderson v. Liberty Lobby, Inc.,

(1986); T.W. Elec. Serv., Inc. v. 24 Pacific Elec. Contractors Ass’n,

(9th Cir. 1987), and that the dispute is 25 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 26 party, see Wool v. Tandem Computers, Inc.,

(9th Cir. 1987). 27 In the endeavor to establish a factual dispute, the opposing party need not establish a 28 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 1 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 2 T.W. Elec. Serv.,

. Thus, the “purpose of summary judgment is to ‘pierce the 3 pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 4 Matsushita,

(quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 5 amendments). 6 In resolving the summary judgment motion, the evidence of the opposing party is to be 7 believed. See Anderson,

. All reasonable inferences that may be drawn from the 8 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 9 U.S. at 587. That said, inferences are not drawn out of the air, and it is the opposing party’s 10 obligation to produce a factual predicate from which the inference may be drawn. See Richards 11 v. Nielsen Freight Lines,

(E.D. Cal. 1985), aff’d,

, 902 12 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 13 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 14 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 15 ‘genuine issue for trial.’” Matsushita,

(citation omitted). 16 III. Facts 17 The following facts are either undisputed or are supported by the evidence viewed in the 18 light most favorable to plaintiff. Except where otherwise noted, the facts identified are derived 19 from the allegations in plaintiff’s second amended complaint, which is signed under penalty of 20 perjury (ECF No. 20), the exhibits attached thereto, and / or defendants’ affidavits submitted in 21 support of the motion for summary judgment (ECF No. 58-5 & 7). 22 1. Plaintiff arrived at Mule Creek State Prison in October of 2019. Between October 17, 23 2019, and December 16, 2019, plaintiff submitted three requests for teeth cleaning. Plaintiff 24 made a fourth request on January 22, 2020: 25 I have requested . . . to see a dentist for a cleaning, the first request was made in October, nearly 4 months ago, and I still have not seen 26 a dentist in any regard. Please address this issue and inform me when I will have an appointment. This is inhuman treatment! 27 28 ///// 1 2. Plaintiff was seen by Dr. Ly on January 29, 2020. Plaintiff was not in any pain that 2 day. ECF No. 58-5 at 18. Dr. Ly took x-rays and conducted a general evaluation of plaintiff’s 3 teeth. Dr. Ly commented about plaintiff’s condition as follows: 4 I noted that his Implant #9 tooth had 12 mm probing with purulent, and he had inflamed gingival tissues (indicative of a failed implant). 5 Plaintiff’s tooth #9 implant had extensive bone loss which was well past the coronal threads of the implant. I also noted that Plaintiff’s 6 overall oral health was poor. 7 Plaintiff alleges that Dr. Ly informed plaintiff that his implant had become infected. No 8 treatment was provided for plaintiff’s infection. 9 3. Following the visit, Dr. Ly requested that the “Dental Authorization Review 10 Committee” approve plaintiff for a consultation with an oral surgeon for removal of the implant. 11 The consult was approved on February 12, 2020. 12 4. On March 2, 2020, a hygienist cleaned the teeth on the right side of plaintiff’s mouth. 13 The infection was on the left side of plaintiff’s mouth. Plaintiff arrived to the cleaning in no pain 14 (ECF No. 58-5 at 23) and was dismissed from the cleaning “in good condition” (ECF No. 58-5 at 15 21). 16 5. Plaintiff was scheduled to have the rest of his teeth cleaned on March 16, 2020, but the 17 appointment was cancelled due to Covid-19. Id. at 28. Nothing suggests Dr. Ly was involved in 18 the decision to cancel the appointment. 19 6. On April 7, 2020, plaintiff requested that his teeth cleaning be completed. Plaintiff 20 was informed that, due to Covid-19 and because plaintiff did not require urgent care, his second 21 teeth cleaning would not be scheduled. Id. Again, nothing suggests Dr. Ly had any involvement 22 in the decision not to schedule the second cleaning. 23 7. Plaintiff submitted a second request on April 15, 2020. Specifically, plaintiff requested 24 as follows: 25 I have an implant that is potentially infected, and or in danger of becoming infected, and need the second half of my deep cleaning on 26 that side of my mouth. This is a potential serious problem and needs done ASAP regardless of COVID-19. Please call me in ASAP, it has 27 been nearly 3 years since I’ve been allowed to get this cleaning done. . . . 28 1 ECF No. 20 at 23. It appears the second request was approved. ECF No. 58-5 at 42. 2 8. It is not clear when the teeth cleaning was completed, but it was not completed by May 3 5, 2020, when the implant mentioned above was pulled. When plaintiff arrived for his 4 consultation with the oral surgeon and implant extraction he was not in any pain. Id. at 44. After 5 extraction, plaintiff was given antibiotics to treat his infection. RT at 26. 6 9. On May 18, 2020, plaintiff filed a grievance concerning the medical care he received 7 through the extraction of his implant. ECF No. 20 at 35. Dr. Archibald submitted a written 8 response to the grievance which is dated July 21, 2020. Id. at 44-45. 9 10. Plaintiff had no issues in the area of the implant after it was removed. RT at 26-27. 10 IV. Medical Care Under the Eighth Amendment 11 Denial of appropriate medical care for a prisoner’s serious medical needs may violate the 12 Eighth Amendment. Estelle v. Gamble,

(1976). A violation occurs when a 13 prison employee causes injury by being at least deliberately indifferent to a prisoner’s serious 14 medical needs. The deliberate indifference standard is met with either a purposeful act or failure 15 to act.

A showing of merely negligent medical care is not enough to establish a violation of 16 the Eighth Amendment. Frost v. Agnos,

(9th Cir. 1998), citing Estelle, 429 17 U.S. at 105-106. A difference of opinion about the proper course of treatment is not deliberate 18 indifference, nor does a dispute between a prisoner and prison officials over the necessity for or 19 extent of medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 20

(9th Cir. 2004); Sanchez v. Vild,

(9th Cir. 1989). 21 V. Arguments and Analysis 22 A. Dr. Ly 23 Dr. Ly argues that there is no genuine issue of material fact that he was at least 24 deliberately indifferent to plaintiff’s serious medical needs. Essentially, plaintiff complains about 25 the treatment provided by Dr. Ly as to the failing implant. Plaintiff believes Dr. Ly should have 26 taken some course of action other than recommending that plaintiff be permitted to consult an 27 oral surgeon for possible implant extraction. 28 ///// 1 In his second amended complaint, plaintiff asserts Dr. Ly should have given plaintiff 2 antibiotics or “medical grade mouthwash” to help fight plaintiff’s infection, but plaintiff fails to 3 point to any evidence suggesting provision of such items was medically appropriate or that they 4 would have helped plaintiff in any way. Plaintiff fails to point to any other treatment options 5 available to Dr. Ly. 6 Defendants provide an affidavit from Dr. Matthew Milnes, D.D.S. ECF No. 58-6. 7 Among other things, Dr. Milnes reviewed plaintiff’s pleadings, the transcript of his deposition, 8 and his dental records. ECF No. 58-6 at 3. Ultimately, Dr. Milnes concludes “Dr Ly provided 9 appropriate care . . . did not delay treatment, and was not responsible for the loss of implant #9 10 ...” Id. at 10. Plaintiff fails to point to any admissible evidence suggesting the conclusions 11 reached by Dr. Milnes are false. 12 Plaintiff also takes issue with the length of time it took for plaintiff to have his first 13 examination by Dr. Ly. Plaintiff believes that had he been seen sooner, his implant may have 14 been saved. It is not clear whether at least some of the delay as to Dr. Ly’s examination of 15 plaintiff is attributable to either defendant. But there is nothing before the court indicating that 16 the delay was the result of at least deliberate indifference, and nothing suggests either defendant 17 was aware of the failing implant before Dr. Ly saw plaintiff. As indicated above, plaintiff began 18 asking for a teeth cleaning on October 17, 2019. In his requests, plaintiff never mentioned he had 19 an implant, that he was having issues with the implant, or any other conditions suggesting 20 immediate attention was required under the Eighth Amendment. Plaintiff suggests that it was 21 incumbent upon defendants under the Eighth Amendment to either have reviewed plaintiff’s 22 medical records when plaintiff arrived at Mule Creek or possibly when plaintiff requested teeth 23 cleanings. Because plaintiff only requested a teeth cleaning, it cannot be found that defendants’ 24 failure to review plaintiff’s medical records amounted to indifference to plaintiff’s condition or a 25 failure to respond to it. 26 For these reasons, there is no genuine issue of material fact as to whether Dr. Ly caused 27 plaintiff injury by being at least deliberately indifferent to plaintiff’s serious medical needs. More 28 specifically, there is no admissible evidence suggesting Dr. Ly caused plaintiff any injury or that 1 he was ever at least deliberately indifferent to the condition of plaintiff’s teeth. Dr Ly is entitled 2 to summary judgment. 3 B. Dr. Archibald 4 Dr. Archibald’s only involvement with plaintiff’s dental care concerned the review of 5 plaintiff’s grievance filed after his implant was extracted. In his second amended complaint, 6 plaintiff points to Dr. Archibald’s position as the “Supervising Dentist” at Mule Creek as a basis 7 for liability under

. However, in § 1983 cases there is no respondeat superior 8 liability, e.g. Ashcroft v. Iqbal,

(2009), meaning a supervisor cannot be held 9 liable simply because of a supervisorial position. To proceed against Dr. Archibald, there must 10 be evidence that he violated plaintiff’s Eighth Amendment rights through his own actions.

11 Plaintiff fails to point to anything suggesting Dr. Archibald caused plaintiff injury by 12 being at least deliberately indifferent to his serious medical needs. Nothing suggests Dr. 13 Archibald was aware of plaintiff’s condition at all until plaintiff filed his grievance. For these 14 reasons, Dr. Archibald is entitled to summary judgment. 15 Defendants also argue plaintiff failed to exhaust available administrative remedies with 16 respect to his claim against Dr. Archibald. Under 42 U.S.C. § 1997e(a) “[n]o action shall be 17 brought with respect to prison conditions under section 1983 of this title, or any other Federal 18 law, by a prisoner confined in any jail, prison, or other correctional facility until such 19 administrative remedies as are available are exhausted.” The court has reviewed the grievance 20 which was submitted by plaintiff and there is nothing in the grievance which exhausts 21 administrative remedies for any actionable claim against Dr. Archibald. ECF No. 58-7 at 7-17.1 22 VI. Conclusion 23 For the foregoing reasons, defendants Dr. Ly and Archibald are entitled to summary 24 judgment. Because no other defendants remain, this case should be closed. 25

1 Defendants also argue they are entitled to summary judgment based on the qualified immunity 26 doctrine. Because there is no genuine issue of material fact as to whether either defendant’s 27 conduct violated a clearly established constitutional right, summary judgment based on qualified immunity is also appropriate. Saucier v. Katz,

, 201 (2001). 28 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Defendants Dr. Archibald and Dr. Ly’s motion for summary judgment (ECF No. 58) 3 || be granted; and 4 2. This case be closed. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days 7 || after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 || objections shall be served and filed within fourteen days after service of the objections. The 11 || parties are advised that failure to file objections within the specified time may waive the right to 12 || appeal the District Court’s order. Martinez v. YIst,

(9th Cir. 1991). 13 | Dated: January 15, 2025 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | 4 19 gosz1717.msj(2) 20 21 22 23 24 25 26 27 28