by Lonnie Burton

On September 16, 2014, United States District Judge William Alsup, sitting in the Northern District of California, issued an order granting in part and denying in part a motion for summary judgment filed by prison officials in a case where a prisoner had sued for inadequate dental care. The case was immediately referred to the Pro Se Prisoner Mediation Program for further proceedings.

The case concernsCesar Uribe, who, while incercaerated at the California Training Facility in October 2010, saw a prison dentist, Dr. Luz F. Wares, for a routine dental exam. During that exam Dr. Wares found a wisdom tooth that was growing sideways and was likely to protrude the gums in the future. Uribe reported no pain and no treatment for the tooth was ordered. About a year later, though, Uribe returned to the dentist, this time reporting "slow throbbing" pain. The wisdom tooth was now starting to protrude from the gum. On November 3, 2011, another prison dentist, Dr. Chi Nguyen, classified Uribe's situation as urgent but not emergent. He said he would be seen again in three business days, but prescribed him no medication despite Uribe's complaint's of pain.

It wasn't until six days later that Uribe was finally called back to the dentist. On November 9, Uribe was seen by a third prison dentist, Dr. Philip Babienco. Uribe told Dr. Babienco that the pain was constant and debilitating at this point, but the doctor wrote in the chart that Uribe had "no indication of pain." Uribe was sent away again with no pain coeds.

Uribe's impacted wisdom tooth was finally extracted by an outside oral surgeon on November 28, 2011. At that time he was prescribed same ibuprofen for his post-surgical pain. An adjacent tooth was extracted early the next year without complication.

Uribe sued the prison dentists, alleging they violated his civil rights under the Eighth Amendment by providing inadequate dental care--by not extracting the wisdom tooth in October 2010 when Dr. Wares knew it would cause Uribe problems in the future, for failing to give him pain medications, and for the 25-day delay in extracting the tooth in November 2011.

Defendants filed for summary judgment, and Uribe, acting pro se, sought appointment of a medical expert. Defendants argued that the facts, even when viewed in a light most favorable to Uribe, raised no genuine issue of material fact suitable for trial. The district court agreed, on all but one of Uribe's claims.

The court first dismissed the claims against Dr. Wares for failing to order extraction of the tooth in October 2010. "There is no evidence that immediate extraction of an unerupted tooth...that is not causing pain, bleeding or other symptoms, is medically required simply because it may cause problems in the future," the court wrote.

The court also dismissed the claim against Dr. Nguyen for failing to classify Uribe's situation as "emergent" in November 2011, which would have led to quicker treatment. "Given the symptoms plaintiff described in his (dental care] request form," the court held, "there is no evidence that (Dr. Nguyen] was unreasonable or improper in characterizing his needs as urgent," and there was no evidence that the characterization of Uribe's symptoms as urgent was wrong.

The sole issue upon which Uribe prevailed was his claim against Dr. Babienco for refusing to give him pain medication between November 3 and November 28, 2011. "There is a triable issue as to whether Dr. Babienco was deliberately indifferent to plaintiff's serious dental needs in failing to provide him withpain medication," judge Alsup said. "A reasonable jury could conclude that" Dr. Babienco knew Uribe was in considerable pain and "either deliberately or negligently disregarded" it. "Accordingly, Dr. Babienco is not entitled to summary judgment on that issue."

The court found the surviving part of the case suitable for mediation and referred the parties to the Pro Se Prisoner Mediation Program. The court also denied Utibe's motion for appointment of a dental expert, holding that there was "no indication" that another dentist would testify differently than the evidence already before the court.

See: Uribe v. Babienco, et al., Case No. C 13-1106 WHA (PR), (U.S.D.C. N.D. CA), September 16, 2014.

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