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Friday, June 5, 2020


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Litigation to Continue Over Pulling of Inmate’s Tooth Against His Wishes

Ninth Circuit Says There’s No Immunity for a State-Hired Dentist Who Overrode Patient’s Desire; Says Impermissibility Was Clear


By a MetNews Staff Writer


A state prison inmate’s action against a dentist for removing one of his wisdom teeth against his will more than 10 years ago will continue in the U.S. District Court for the Central District of California, with the Ninth U.S. Circuit Court of Appeals’s affirmance of an order denying summary judgment to the defendant.

The dentist is not entitled to qualified immunity, a three-judge panel declared in a memorandum opinion, filed Wednesday, because his conduct was unlawful “based on the clearly established law.” It paid no heed to the argument by California’s Office of Attorney General that the prerogatives of a medical professional in a prison are broader than those of such a person on the outside.

Frank Galvan, who is serving a sentence of 38 years to life for an assault on a fellow prisoner by means of force likely to produce great bodily injury, is suing Kenneth E. Duffie, a Las Vegas cut-rate dentist, over an extraction on Jan. 28, 2010. It took place in Ironwood State Prison in Riverside County, where Galvan was then housed.

Limit of Consent

The inmate had consented to the extraction of tooth No. 15—his second molar (in the top row). The dentist started to pull it—then stopped when he detected that the tooth behind it, No. 16 (the third molar, a “wisdom tooth”) was moving.

Speculating that the two teeth were fused at the jawbone, Duffie announced he would need to pull both of them. Galvan objected; they had a discussion; Galvan again declined to consent; Duffie pulled both teeth, anyway.

In the aftermath, the inmate’s face was swollen  and, according to his rendition, he suffered considerable pain. The following month, another dentist looked at his X-rays and determined that the teeth were not fused.

On Aug. 21, 2013, Galvan brought suit against the dentist for a civil rights violation, pursuant to 42 U.S.C. §1983. Alleging a substantive due process violation, Galvan—who was self-represented until he was recently accorded pro bono counsel—did not join a state claim for battery or malpractice.

Summary Judgment Motions

Duffie has twice sought, and been denied, summary judgment. The first time was in 2017, claiming the extraction was medically necessary and he was obliged to proceed as he did.

Magistrate Judge Patrick J. Walsh recommended the denial, saying:

“Except in unusual circumstances, a prisoner has a constitutional right to refuse unwanted medical care….Though there are exceptions to this rule for life and death situations or for medical conditions that could impact the health and well-being of other prisoners or prison staff…, none of those exceptions applies here.

“Plaintiff had a constitutional right to refuse having his tooth pulled….Dr. Diffie’s refusal to honor that right is actionable under § 1983.”

Two days later, District Court Judge Beverly Reid O’Connell (since deceased) adopted Walsh’s findings as her own and denied the motion.

Second Attempt

Next, Duffie sought summary judgment based on qualified immunity. District Court Judge Michael W. Fitzgerald denied the motion on April 9, 2019.

“State officials are entitled to qualified immunity unless the official violated a right protected under the U.S. Constitution that was clearly established at the time of the violation,” he recited, declaring:

“Here, Plaintiff had a constitutional right to refuse having tooth number 16 extracted, and by refusing to honor that right over Plaintiff’s objection, Defendant violated clearly established law.”

Duffie’s appeal of Fitzgerald’s decision came before a panel comprised of Senior Circuit Judge Andrew Jay Kleinfeld, Circuit Judge Consuelo Maria Callahan, and Chief District Court Judge Dana L. Christensen of the District of Montana, sitting by designation.

Oral Argument

At oral argument in Pasadena on March 2, the judges signaled their intent to affirm.

In questioning Deputy Attorney General Paul C. Epstein, who represented Duffie, Callahan recounted that on the day in question in 2010, “Mr. Galvan is awake.” She continued:

“It didn’t seem like he was going to die. So, why can’t he just say, ‘Don’t pull my tooth’?

“Any dentist just wouldn’t pull the tooth.”

Epstein argued that in a setting outside of a prison, a patient who questioned the wisdom of a dentist’s determination could “get up and leave and go to another dentist for a second opinion,” but that “a prisoner can’t do that.” He noted that “the state is responsible for the medical and dental care of the prisoner.”

The fact that Galvan is a prisoner, Callahan reminded the lawyer, “doesn’t mean he doesn’t have any rights.”

State’s Position

Challenged by Kleinfeld and Christensen as to his claim that in 2010 there was no clear authority in point, Epstein said:

“Our position is for Dr. Duffie to be denied qualified immunity there would have to have been a case that had been decided—whether it involved dentistry or not—where a consented-to procedure was begun. After it was begun, a complication or an unanticipated situation arose that would not have been consented to, and the doctor had to make a decision—and it has to be in a prison setting—‘Do I let this prisoner go back to his cell and get sicker than he already is, or do I do what my opinion is, which I think proper dental care is?’ ”

Kleinfeld remarked that patients, all the time, opt not to undergo surgery which medical professionals say is needed. Epstein responded:

“Turning down surgery is not what happened here. The surgery begun.”

The judge commented: “So what?”

Kleinfeld’s Stance

Kleinfeld took the position that Duffie was on notice as to the wrongfulness of his action because the performance of a procedure without a patient’s informed consent is a battery under state law and “every doctor and dentist knows it.”

Epstein acknowledged that the extraction over Galvan’s protest “might be a state court tort,” which Galvan did not advance, but “[t]hat doesn’t turn it into a constitutional violation.”

The senior judge opined that “the state tort would pretty much define the scope of the due process violation.”

Memorandum Opinion

In Wednesday’s memorandum opinion, the court proclaimed that any “reasonable official in” Duffie’s “shoes would have understood he was violating Plaintiff-Appellee’s Fourteenth Amendment right by performing the tooth extraction—an unconsented medical procedure not required to preserve life or advance penological interests.”

It quoted the U.S. Supreme Court’s 1990 decision in Cruzan v. Director, Missouri Department of Health as saying that “a competent person has a constitutionally protected liberty interest in refusing  unwanted medical treatment.”

The opinion then pointed to the Ninth Circuit’s 1974 opinion in Runnels v. Rosendale which established that where a prison’s medical personnel perform “major  medical procedures upon the body of any inmate, without his consent and over his  known objections” and the procedures were not required to preserve his life or further a  compelling interest of imprisonment or prison security,” a due process violation occurs.

Now, the case returns to the District Court for further proceedings, though Wednesday’s opinion appears to foreclose any ultimate victory on Duffie’s behalf.

The case is Galvan v. Duffie, 19-55531.


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