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Proctor v. Horn

United States District Court, D. Nevada

March 26, 2015

CHARLES JUAN PROCTOR, Plaintiff,
v.
VAN HORN, et al., Defendants

Order Filed: January 26, 2014

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[Copyrighted Material Omitted]

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Charles Juan Proctor, Plaintiff, Pro se, Indian Springs, NV.

For Dr. Van Horn, Karen Gedney, terminated pursuant to Order #117, Lois Elliott, terminated pursuant to Order #117, Terri Jacobs, terminated pursuant to Order #117, Sonja Missy Gleason, Defendants: Elizabeth Hickman, LEAD ATTORNEY, Nevada Attorney General's Office, Carson City, NV.

OPINION

MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

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ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB

I. SUMMARY

Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (dkt. no. 116) (" R& R" ) relating to plaintiff's Dispositive Motion (dkt. no. 75) and defendants' Motion for Summary Judgment (" Motion" ) (dkt.no. 89). No objection to the R& R has been filed. Also before the Court is Defendants' motion for leave to file confidential documents in support of their Motion under seal. (Dkt. no. 88.)

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II. DISCUSSION

This Court " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to " make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is not required to conduct " any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review " any issue that is not the subject of an objection." ). Thus, if there is no objection to a magistrate judge's recommendation, then the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.Supp.2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).

Nevertheless, this Court finds it appropriate to engage in a de novo review to determine whether to adopt Magistrate Judge Cobb's R& R. Upon reviewing the R& R and underlying briefs, this Court finds good cause to adopt the Magistrate Judge's R& R in full.

Defendants' motion to file confidential documents requests leave to file Plaintiff's medical documents under seal. The Court finds that Defendants have demonstrated good cause to support their request and grants the motion.

III. CONCLUSION

It is therefore ordered that Defendants' motion for leave to file confidential documents under seal (dkt. no. 88) is granted.

It is ordered, adjudged and decreed that the Report and Recommendation of Magistrate Judge William G. Cobb (dkt. no. 116) is accepted and adopted in its entirety.

It is further ordered that Plaintiff's Dispositive Motion (dkt. no. 75) is denied.

It is further ordered that Defendants' Motion (dkt. no. 89) is granted in part and denied in part as follows:

(1) The Motion is granted as to Plaintiff's claim against defendant Lois Elliott;

(2) The Motion is granted as to Plaintiff's claim against defendant Sonja Missy Gleason (" Gleason" ) related to her responses to Plaintiff's June and July 2011 kites, and related to his claims regarding the cancellation of his appointments in August and early September 2011;

(3) The Motion is denied as to Plaintiff's claim against defendant Gleason related to her responses to Plaintiff's kites in October, November and December 2011, and the delay in Plaintiff being seen regarding his complaints of pain during that time;

(4) The Motion is denied as to Plaintiff's claim against Dr. Van Horn related to Plaintiff's kites in October, November and December 2011 and the delay in Plaintiff being seen regarding his complaints of pain during that time; the Motion is otherwise granted as to Dr. Van Horn;

(5) The Motion is granted as to Dr. Karen Gedney;

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(6) The Motion is granted as to defendant Terri Jacobs;

(7) The Motion is granted insofar as Plaintiff seeks to recover money damages against Defendants in their official capacities.

In sum, the following claims remain for trial: Plaintiff's claim against defendant Gleason related to her responses to Plaintiff's kites in October, November and December 2011, and the delay in Plaintiff being seen regarding his complaints of pain during that time; and Plaintiff's claim against Dr. Van Horn related to Plaintiff's kites in October, November and December 2011 and the delay in Plaintiff being seen regarding his complaints of pain during that time.

REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB1-4. Before the court is Plaintiff's dispositive motion (Doc. # 75.)[1] Defendants filed an opposition (Doc. # 92) as well as their own motion for summary judgment (Doc. # 89).[2] Plaintiff filed a response to Defendants' motion (Doc. # 108),[3] and Defendants filed a reply (Doc. # 111).

After a thorough review, the court recommends that Plaintiff's motion be denied, and that Defendants' motion be granted in part and denied in part.

I. BACKGROUND

At all relevant times, Plaintiff was an inmate in custody of the Nevada Department of Corrections (NDOC). (Pl.'s Sec. Am. Compl., Doc. # 67 at 1.) The allegations giving rise to this action took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). ( Id. ) Plaintiff, a pro se litigant, brings this action pursuant to 42 U.S.C. § 1983. ( Id. ) The defendants are Dr. Van Horn, a dentist at NNCC; NNCC's Dr. Karen Gedney; Lois Elliott, a dental assistant at NCCC; Sonja " Missy" Gleason, a dental technician at NNCC; and Terri Jacobs, NNCC's nursing director. ( See Doc. # 67 (Pl.'s Sec. Am. Compl.); Doc. # 66 (Order granting leave to amend to file Sec. Am. Compl.); and Doc. # 38 (granting motion to substitute Elliot and Gleason in place of Jane Does 1 and 2).) On screening, the court determined Plaintiff states colorable Eighth Amendment claims for deliberate indifference to his serious medical needs related to the alleged delay and denial of necessary dental care. (Doc. # 7; Doc. # 66.)

II. LEGAL STANDARD

" The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). In considering a motion for summary judgment, all reasonable inferences are drawn in favor

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of the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). " The court shall 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). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1)(A), (B).

If a party relies on an affidavit or declaration to support or oppose a motion, it " must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).

In evaluating whether or not summary judgment is appropriate, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine dispute as to a material fact; and (3) considering the evidence in light of the appropriate standard of proof. See Anderson, 477 U.S. at 248-250. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment; factual disputes which are irrelevant or unnecessary will not be considered. Id. at 248.

In deciding a motion for summary judgment, the court applies a burden-shifting analysis. " When the party moving for summary judgment would bear the burden of proof at trial, 'it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.'...In such a case, the moving party has the initial burden of establishing the absence of a genuine [dispute] of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party satisfies its initial burden, the burden shifts to the opposing party to establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a genuine dispute of material fact, the opposing party need not establish a genuine dispute of material fact conclusively in its favor. It is sufficient that " the claimed factual dispute be shown to require

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a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotation marks and citation omitted). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Id. Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324.

That being said,

[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or (4) issue any other appropriate order.

Fed. R. Civ. P. 56(e).

At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine dispute of material fact for trial. See Anderson, 477 U.S. at 249. While the evidence of the nonmovant is " to be believed, and all justifiable inferences are to be drawn in its favor," if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50 (citations omitted).

III. DISCUSSION

A. Eighth Amendment Deliberate Indifference to Serious Medical Needs

A prisoner can establish an Eighth Amendment violation arising from deficient medical care if he can prove that prison officials were deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). " The requirement of deliberate indifference is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because '[t]he State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), rev'd on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). " In deciding whether there has been deliberate indifference to an inmate's serious medical needs, [the court] need not defer to the judgment of prison doctors or administrators." Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989).

A claim for deliberate indifference involves the examination of two elements: " the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin, 974 F.2d at 1059; see also Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). " A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 104); see also Akhtar, 698 F.3d at 1213. Examples of conditions that are " serious" in nature include " an injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." McGuckin, 974 F.2d at 1059-60; see also Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (citation omitted) (finding that inmate whose jaw was broken and mouth was wired shut for several months demonstrated a serious medical need).

If the medical need is " serious," the plaintiff must show that the defendant acted with deliberate indifference to that need. Estelle, 429 U.S. at 104; Akhtar, 698 F.3d at 1213 (citation omitted). " Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Deliberate indifference entails something more than medical malpractice or even gross negligence. Id. Inadvertence, by itself, is insufficient to establish a cause of action under section 1983. McGuckin, 974 F.2d at 1060. Instead, deliberate indifference is only present when a prison official " knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); see also Akhtar, 698 F.3d at 1213 (citation omitted).

Deliberate indifference exists when a prison official " den[ies], delay[s] or intentionally interfere[s] with medical treatment, or it may be shown by the way in which prison officials provide medical care." Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (internal quotation marks and citation omitted). " '[A] prisoner need not prove that he was completely denied medical care' in order to prevail" on a claim of deliberate indifference. Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (quoting Lopez, 203 F.3d at 1132), overruled on other grounds, Peralta v. Dillard, 744 F.3d 1076 (9th Cir. Mar. 6, 2014). Where delay in receiving medical treatment is alleged, a prisoner must demonstrate that the delay led to further injury. McGuckin, 974 F.2d at 1060.

" 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." Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Instead, to establish deliberate indifference in the context of a difference of opinion between a physician and the prisoner or between medical providers, the prisoner " '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 plaintiff's health.'" Snow, 681 F.3d at 988 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).

Defendants do not appear to dispute that Plaintiff suffers from a serious medical need; therefore, the court's analysis will focus on whether their alleged conduct amounts to deliberate indifference.

B. Summary of Evidence

In February 2009, shortly after Plaintiff arrived at intake to NDOC's High Desert State Prison (HDSP), he was sent temporarily to California to face felony charges. (Doc. # 67 at 3; Doc. # 89 at 2; Doc. # 108 at 1.) In March 2010, while at the Los Angeles County Jail, he suffered a broken jaw. (Doc. # 67 at 3; Doc. # 89 at 3; Doc. # 108 at 1.) He returned to HDSP in October 2010. (Docs. # 89 at 3; Doc. # 89-1 at 2; Doc. # 108 at 2.) He saw a dentist at HDSP on October 27, 2010 (Doc. # 67 at 3; Doc. # 90-1 at 2, 3; Doc. # 108 at 2), who noted that Plaintiff had steel

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plates on both sides of his jaw with limited opening. (Doc. # 90-1 at 2.) The dentist noted there was no popping, pain or crepitus. ( Id. )

On January 15, 2011, Plaintiff sent a kite stating that he needed to have his remaining teeth pulled, to be placed on a liquid diet while his gums healed, and have dentures made. (Doc. # 90-2 at 2.) He was advised he would be seen when his name came up on the list. ( Id. ) He saw Dr. Hanson at HDSP on January 24, 2011, who requested that Plaintiff be seen by Dr. Sanders, who could better evaluate Plaintiff's dental concerns. (Doc. # 90-1 at 3; Doc. # 108 at 3-4.) Plaintiff saw Dr. Sanders on January 28, 2011. (Doc. # 90-1 at 3; Doc. # 108 at 4.) It was noted that Plaintiff suffered a fracture while in prison in March 2010, and his jaw was wired shut for six weeks, and then removed by an oral surgeon. (Doc. # 90-1 at 3.) Plaintiff reported that his jaw would slip out of its socket two to four times a week. ( Id. ) X-rays were taken and Dr. Sanders determined that Plaintiff's teeth were in poor periodontal health, with bone loss, and recommended extraction of all remaining teeth for complete denture fabrication after the mandible[4] and maxilla[5] were aligned. ( Id. ) Dr. Sanders also stated that Plaintiff needed to be referred to an oral surgeon outside of the institution for further dental procedures. ( Id. ) Plaintiff could not stay for the extraction of several of the teeth that day because of custody issues, and was supposed to be seen again the following Monday. ( Id. )

When Plaintiff saw Dr. Sanders again on January 31, 2011, it was noted that Plaintiff was in no pain, but did not want his teeth extracted that day; instead, he wanted all teeth extracted at once, to have his jaw fixed and reset, and then have dentures made. ( Id. ) Dr. Sanders noted that he did not make Plaintiff any promises, but said he would send the request to the Utilization Review Panel (URP) for a final determination. ( Id. )

On February 1, 2011, Dr. Hanson and Dr. Sanders requested that Plaintiff be sent to NNCC to see Dr. Van Horn or Dr. Remsen, and then Dr. Pincock. (Doc. # 90-3 at 2-3.) They stated that given the shape his mouth was in, routine and emergency dental treatment could not be done in an institutional setting unless surgical intervention occurred. ( Id. at 3.) The request was approved on February 8, 2011. ( Id. at 2.) Dr. Sanders noted on February 9, 2011, that Plaintiff was approved by the URP for transfer to NNCC for further evaluation. (Doc. # 90-1 at 3.)

Plaintiff was first transferred to Nevada State Prison (NSP), where he saw Dr. Van Horn. (Doc. # 108 at 7; Doc. # 110-2 at 1.) On March 27, 2011, it was noted by Dr. Van Horn that Plaintiff did not want any teeth extracted until he was seen by an oral surgeon. (Doc. # 90-1 at 3.) Plaintiff claims he did not say this, and claims he did not know it was an option to see the oral surgeon. (Doc. # 108 at 7.) In a subsequently filed declaration, Plaintiff states that Dr. Van Horn asked why he did not have two of the teeth extracted at HDSP. (Doc. # 110-2 at 1.) Plaintiff asserts that he responded that he grinds his teeth and wanted a mouth guard and HDSP did not have one, and he knew he was being submitted for transfer to NNCC and did not want to start the process in one place only to have it finished in another. (Doc. # 110-2 at 1.) Plaintiff maintains that he did not refuse to have his teeth pulled at NSP; nevertheless, that same day, Dr. Van Horn sent a request to the

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URP requesting that Plaintiff be seen by the oral surgeon, Dr. Pincock. (Doc. # 90-3 at 4.) This was approved by the URP on May 3, 2011. ( Id. )

Plaintiff was transferred from NSP to NNCC on or about April 7, 2011. (Doc. # 108 at 7; Doc. # 90-5 at 7 (a progress note dated April 8, 2011, which mentions that Plaintiff was at NNCC for a surgical consultation with Dr. Pincock as a result of a jaw fracture in March 2010).)

On May 4, 2011, the progress notes state that Plaintiff was scheduled for review but did not keep his appointment. (Doc. # 90-1 at 3.) On May 10, 2011, Plaintiff sent a kite asking whether he had been approved for surgery and was advised on May 12, 2011 by defendant Elliott that Dr. Van Horn would review his chart again. (Doc. # 67 at 16; Doc. # 75 at 31.)

On May 20, 2011, Plaintiff sent a kite to Dr. Van Horn, stating that he had been at NNCC awaiting approval for his jaw surgery since April 7, 2011, and was having a difficult time chewing and was experiencing sharp pain. (Doc. # 67 at 17; Doc. # 75 at 32.) He requested surgery as soon as possible. ( Id. ) Defendant Elliott responded on May 26, 2011: " You were scheduled to see Dr. Van Horn for a new eval-But you missed apt. 5-4-11. He needs to see you to write a new consult." ( Id. )

On May 29, 2011, Plaintiff sent a kite asking when he was scheduled to see Dr. Van Horn. (Doc. # 67 at 18; Doc. # 75 at 33.) He was told on May 31, 2011, by defendant Elliott: " You were seen by him at NSP in March 2011 and he has looked at your chart again." ( Id. )

On June 2, 2011, Plaintiff sent another kite stating the following: " If I had been seen by Dr. Van Horn at NSP in March of 2011, then why was I scheduled to see him on 5-4-11, that I was to have missed? And if he needed to see me on 5-4-11 in order to write a new consultation on my jaw, then doesn't he still need to see me in order to do that?" (Doc. # 75 at 34.) The next day he received this response from defendant Elliott: " He reviewed your chart and rewrote the order. So its up to the next step." ( Id. )

On June 9, 2011, Plaintiff sent a kite asking whether Dr. Van Horn had reviewed his chart, what his original order said, and how to proceed. (Doc. # 67 at 19.) On June 14, 2011, defendant Elliott responded: " These questions will have to be answered by review board." ( Id. ) John Peery, NNCC's former nursing director, also responded: " The response from Utilization Review is pending." ( Id. )

On June 16, 2011, Plaintiff sent a kite asking what the order referred to in the previous kite response said, and asked what the next step was. (Doc. # 75 at 35.) On July 7, 2011, he received a response from defendant Gleason: " This procedure with the panel is simply procedures every one has to follow, and they do look @ your file. You will be notified of the decision. Please do not rekite until your [sic] notified." ( Id. )

On June 22, 2011, Plaintiff sent a kite asking what the Utilization Review was, and why his jaw surgery was pending before them. (Doc. # 75 at 36.) On July 7, 2011, defendant Gleason responded: " The UR panel is a panel that makes the decisions whether or not a procedure is approved or not approved! Dr. Van Horn is not on this panel (as previously asked in one of your other kites) you need to be patient and you'll be notified of the decision. Please do not rekite until the decision has been made." ( Id. )

Plaintiff saw Dr. Pincock on July 6, 2011. (Doc. # 90-4 at 2.) Dr. Pincock's notes indicate that Plaintiff was referred to him for evaluation of a mandibular deformity. ( Id. ) Dr. Pincock stated that Plaintiff suffered from multiple fractures

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while imprisoned in Los Angeles County. ( Id. ) He underwent open reduction and internal fixation of the fractures on April 9, 2010, and was left in intermaxillary fixation for about six weeks, and his jaw felt out of position and caused him occasional pain. ( Id. ) On examination, Dr. Pincock noted the following: an obvious deformity of the lower face, with a grossly protrusive mandible; " an associated severe Class III dental relationship; " missing multiple teeth; a grossly over-closed mandible; the remaining teeth had supererupted; and severe periodontal disease and oral sepsis. ( Id. ) His mandibular range of motion was noted as being somewhat limited. ( Id. ) Dr. Pincock diagnosed Plaintiff as follows: oral sepsis; malunion of multiple mandibular fractures which are likely exacerbating a pre-existing prognathism; no mandibular posterior dentition. ( Id. ) He opined that in order to properly address the deformity, all of Plaintiff's infected teeth would have to be removed, which " likely represents his remaining dentition." ( Id. ) Once that occurred, Dr. Pincock stated that further consideration could be given to reconstructive surgery. ( Id. )

On July 11, 2011, Plaintiff sent a kite asking who the doctor was that he saw on July 6, 2011, and was advised it was Dr. Pincock. (Doc. # 75 at 37.)

Dr. Pincock's notes were received by NNCC on July 18, 2011. (Doc. # 90-5 at 7.) The recommendation for extractions was noted, and it was stated that Plaintiff would be scheduled with Dr. Van Horn. ( Id. )

On July 31, 2011, Plaintiff asked what the purpose was for his visit with Dr. Pincock, and requested Dr. Pincock's conclusions. (Doc. # 75 at 41.) Defendant Gleason responded on August 3, 2011 that she would make an appointment with the dentist to go over the results. ( Id. )

An appointment slip reflects that Plaintiff had an appointment with the dentist on August 10, 2011. (Doc. # 67 at 27; Doc. # 75 at 42.) Plaintiff sent a kite that day saying that he did not see the dentist, and asked to have his appointment rescheduled. (Doc. # 67 at 28; Doc. # 75 at 43.) He was advised by defendant Gleason that he was still on the list and would be notified of his new appointment date. ( Id. ) Plaintiff was given appointment dates on August 25, 2011, August 31, 2011 and September 1, 2011, but sent kites indicating that he did not see the dentist on these dates either, and requested that his appointment be rescheduled. (Doc. # 67 at 29-35; Doc. # 75 at 44-49, 51.) Plaintiff was eventually seen on September 6, 2011. ( See id. at 47-49, 52.) Later that day, he asked for another appointment with the dentist to discuss some questions he had. (Doc. # 75 at 52.) He was advised on September 16, 2011 that he would be notified of an appointment. ( Id. )

On September 23, 2011, Plaintiff's teeth were extracted. (Doc. # 90-1 at 3-4; Doc. # 89-8 ¶ 9.) He was given Amoxicillin and ibuprofen pain packs and Tylenol 3. (Doc. # 90-1. at 4.)

On October 11, 2011, Plaintiff sent a kite indicating that his gums and the right-side of his jaw were causing him pain after his teeth had been pulled, and he requested to see the dentist. (Doc. # 67 at 20; Doc. # 75 at 53.) Defendant Gleason ...


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