Clark v. Kizer, Civ. S-87-1700 LKK.

• Decision Date: 03 October 1990
• Docket Number: No. Civ. S-87-1700 LKK.,Civ. S-87-1700 LKK.
• Citation: 758 F. Supp. 572
• Court: U.S. District Court — Eastern District of California
• Parties: Virginia CLARK, et al., Plaintiffs, v. Kenneth KIZER, Defendant.

758 F. Supp. 572

Virginia CLARK, et al., Plaintiffs, v. Kenneth KIZER, Defendant.

No. Civ. S-87-1700 LKK.

United States District Court, E.D. California.

October 3, 1990.

John K. Van de Kamp, Atty. Gen., Dennis Eckhart, Supervising Atty. Gen., John R. Pierson, Deputy Atty. Gen., State of Cal., Sacramento, Cal., for defendant.

Robert D. Newman, Western Center on Law & Poverty, Inc., Los Angeles, Cal., Eugenie Denise Mitchell, Marla L. Scharf, Legal Services of N. California, Sacramento, Cal., Ray Fuller, Legal Services of N. Calif., Inc., Chico, Cal., Veronika Kott, Legal Services of N. Calif., Woodland, Cal., Tamara Dahn, Solano Co. Legal Assistance Agency, Vallejo, Cal., Ralph Santiago Abascal, California Rural Legal Assistance, San Francisco, Cal., Standley L. Dorn, Jane Perkins, National Health Law Program, Los Angeles, Cal., Abby H. Lassen, Calif. Rural Legal Assistance, Inc., San Luis Obispo, Cal., Anne Miller, Legal Services of N. Calif., Inc., Redding, Cal., David Grabill, California Rural Legal Assistance, Santa Rosa, Cal., Ellen Jacobs, Andrea Zigman, Legal Aid Soc. of Orange County, Santa Ana, Cal., for plaintiffs.

ORDER

KARLTON, District Judge.

This matter is before the court on plaintiffs' motion for partial summary judgment. For the reasons I explain below, the motion is GRANTED in part and DENIED in part.

I SUMMARY JUDGMENT STANDARDS UNDER FED.R.CIV.P. 56

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984).

Under summary judgment practice, the moving party

Always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552. "A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2552.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980).

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. at 1355 n. 11; First Nat'l Bank, 391 U.S. at 289, 88 S.Ct. at 1592; Strong v. France, 474 F.2d 747, 749 (9th Cir.1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510-11; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290, 88 S.Ct. at 1593; T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468, 82 S.Ct. at 488; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir.1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).

II EQUAL ACCESS PROVISION

Plaintiffs first contend that MediCal recipients have been denied equal access to dental care in violation of 42 C.F.R. § 447.204. Under federal law, states which participate in the Medicaid program must operate an early and periodic screening, diagnosis and treatment ("EPSDT") program, which includes dental care, for needy children under the age of 21. 42 U.S.C. § 1396d. States also have the option to cover dental care for adults. 42 U.S.C. § 1396d(a)(10). Once a state determines that it will provide optional services, however, the optional services become part of the state Medicaid plan which is subject to the requirements of federal law and federal regulations. 42 U.S.C. § 1396a; Schweiker v. Gray Panthers, 453 U.S. 34, 36-37, 101 S.Ct. 2633, 2636-37, 69 L.Ed.2d 460 (1981). Thus, Denti-Cal (the dental component of California's Medicaid program) must comport with the requirements of federal law and federal regulations.

The equal access regulation, 42 C.F.R. § 447.204, provides that:

The agency's payments must be sufficient to enlist enough providers so that services under the plan are available to recipients at least to the extent that those services are available to the general population.

This regulation was originally adopted in 1966 and has been in its present form since 1978. In December 1989, Congress codified this regulation, adding the phrase "in the geographic area" at the end. 42 U.S.C. § 1396a(a)(30)(A).

Whether the State is violating the equal access provision turns upon interpreting the language "available to recipients at least to the extent that those services are available to the general population." As I have previously noted, the first step in statutory construction is to determine whether there is binding authority construing the statute. Tello v. McMahon, 677 F.Supp. 1436, 1441 (E.D.Cal.1988). The parties have cited no binding authority construing § 1396a(a)(30)(A) nor has the court's independent research revealed such binding authority.

Turning, therefore, to the language of the statute, it appears that the language is not clear and unambiguous. See INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). It is unclear from the text of the statute what constitutes the "general population" to whose access recipients' is to be compared. The legislative history, however, does illuminate this issue. According to the House Budget Committee report, the test for evaluating access is to compare the access of Medicaid recipients living in a specific geographic area with the access of individuals in the same area who have private or public insurance coverage. H.R.Rep. No. 247, 101st Cong., 1st Sess. 390, reprinted in 1989 U.S.Code Cong. & Ad.News at 1906, 2116. Construing "general population" to mean...