Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 866 (9th Cir. 1989)

Lovell SMITH, Plaintiff-Appellant,v.Paul T. MARSHALL, Dentist, Medical Facility SNCC; GaryWells, Lieutenant, SNCC; Larry Lawrence,Counselor, SNCC, Defendants-Appellees.

No. 87-15065.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 6, 1989.Decided July 5, 1989.

Before CHOY, ALARCON and LEAVY, Circuit Judges.


Lovell Smith, a state prisoner proceeding pro se and in forma pauperis, appeals the district court's dismissal of his action under 42 U.S.C. § 1983. Smith alleges that various prison personnel subjected him to cruel and unusual punishment by giving him inadequate medical care following a tooth extraction by prison dentist Dr. Marshall. We affirm.

The district court dismissed under Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim. However, the district court considered copies of Smith's medical records the defendants attached to their motion to dismiss. Plaintiff included in his complaint a detailed statement of supporting facts. Accordingly, the 12(b) (6) dismissal is treated as one for summary judgment. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

To recover relief under 42 U.S.C. § 1983 based on a violation of his eighth amendment right to adequate medical treatment, Smith must show that the prison staff acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). This indifference must be more than mere negligence. Id. Deliberate indifference involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104 (citing Gregg v. Georgia, 428 U.S. 153, 182-83 (1976)).

The medical records submitted by the defendants and Smith's complaint show that Smith was given pain medication and antibiotics after the extraction. The medical records also show that when Smith was referred to an oral surgeon per his request, the oral surgeon confirmed Dr. Marshall's diagnosis and approved of his treatment. The oral surgeon is not named as a defendant in Smith's complaint. There is no genuine issue of material fact as to deliberate indifference to serious medical needs.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3