Dent v. McBride et al
Filing
66
ORDER GRANTING 36 Motion for Summary Judgment filed by Defendants. Signed by Judge Nancy J. Rosenstengel on 9/22/2017. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DENT,
Plaintiff,
vs.
RANDAL MCBRIDE and
DENNIS LARSON,
Defendants.
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Case No. 3:15-cv-740-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now pending before the Court is the motion for summary judgment filed by
Defendants Randal McBride and Dennis Larson (Doc. 36). For the reasons set forth
below, the motion is granted.
INTRODUCTION
Plaintiff Charles Dent, an inmate currently incarcerated at Big Muddy River
Correctional Center, filed suit pursuant to 42 U.S.C. § 1983 alleging his Eighth
Amendment rights were violated by Dr. Randal McBride, a dentist, and Dr. Dennis
Larson, the medical director at Big Muddy (Doc. 1). Dent claims Defendants failed to
adequately treat his jaw pain, an infection, and three abscessed teeth. He first
complained about his condition on December 1, 2014, but it was not until May 21, 2015,
that the three abscessed teeth were surgically removed. Even after removal of the teeth,
Dent’s pain and swelling continued.
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Pursuant to an Order entered on August 3, 2015, screening the complaint in
accordance with 28 U.S.C. § 1915A, Dent is proceeding on the following claims:
Count 1:
Dr. Randal McBride was deliberately indifferent to
Plaintiff’s serious medical needs in violation of the Eighth
Amendment.
Count 2:
Dr. Dennis Larson was deliberately indifferent to
Plaintiff’s serious medical needs in violation of the Eighth
Amendment.
(Doc. 8).
Defendants now seek summary judgment on Dent’s claims (Docs. 36, 37). After
the motion was fully briefed (Docs. 48, 49), Dent took the deposition of Dr. Jay
Swanson, a non-party specialist who treated him. The parties filed supplemental briefs
on July 6, 2017, and July 20, 2017, respectively (Docs. 56, 57).
BACKGROUND
Defendant Dr. McBride first saw Dent on October 23, 2014, when he was
scheduled for his biennial dental exam (Defendants’ Statement of Undisputed Fact
(“DSUF”) ¶ 5). Dent complained that his lower right teeth hurt, and an examination
showed moderate periodontitis (with no swelling) around teeth #30 and #31 (which are
the teeth in the right lower jaw) (Id.). Dent was told to try sleeping on his left side to
avoid tongue pressure on his teeth (Doc. 37-2, p. 1). Dent also was instructed to follow
up if the problem continued (Id.).
On December 23, 2014, Dent reported a throbbing, excruciating pain in his lower
left jaw that was preventing him from sleeping (Doc. 37-2, p. 1). Dr. McBride noted mild
bone loss and moderate periodontal disease (DSUF ¶ 6; Doc. 37-2, p. 1). The medical
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records stated that “no infection” was present (Doc. 37-2, p. 1); however, Dr. McBride
testified that periodontal disease is in fact a bacterial infection (Doc. 37-1, p. 8). He
ordered penicillin, ibuprofen, and an x–ray and told Dent to watch the area and make a
request for additional care if the condition persisted (Id.).
Dent reappeared two weeks later on January 6, 2015, with pain that “hurts really
bad,” at the site where tooth #19 had previously been extracted (Doc. 37-2, p. 2). Dr.
McBride saw no evidence of infection in the area of extraction; however, he reviewed
the x-ray (noting nothing remarkable) and ordered another antibiotic, amoxicillin, and
acetaminophen (Tylenol) (Id.).
On January 21, 2015, Dent appeared again with “undiminished” symptoms and
reports of swelling in his left lower jaw (Id.). The medical notes indicate: “Discussed
possible referral to M.D.S (Swanson, D.D.S., M.D.) for more extensive evaluation of this
area than is possible at this facility. I/M agreed with this suggestion. Will submit
appropriate paperwork” (Id.). Dr. McBride switched Dent’s pain medication back to
ibuprofen (Id.). On February 9, 2015, Dr. McBride was informed that the referral was
approved, and Dent was seen by Dr. Swanson on February 12, 2015 (Id. at 3).
Dr. Swanson examined Dent’s neck and head, ordered and reviewed a Panorex
Radiograph, and talked to him about his complaint (which was lower, left jaw pain)
(Doc. 56-1, p. 3). Dr. Swanson did not note significant swelling, bleeding, or pain at
tooth #30; however, Dent exhibited “severe pain” upon percussion (tapping on a tooth)
at teeth #17 and #18 (Id. at 3, 5, 8). He diagnosed Dent with “Periodontally involved
dentition”—tooth decay and periodontal disease—conditions that may have been going
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on for years but for which pain may come and go (Id. at 3, 5). Dr. Swanson noted that
these conditions could lead to abscessed teeth and that tooth #18 had an “early abscess”
(Id. at 3, 7). Dr. Swanson believed removal of teeth #17 and #18 on the left side was
necessary and suggested removal of tooth #30 on the right side because removal would
eliminate Dent’s condition and associated pain (Id. at 4, 5). Dr. Swanson also directed
Defendant Dr. Larson to initiate an Augmentin (antibiotic) regimen. If Dr. Swanson
believed that a dental condition was emergent or life threatening, he would have called
prison authorities to tell them that treatment should be started immediately (Id. at 7).
Dr. Swanson made no such call with respect to Dent’s treatment (Id. at 8).
A day after his appointment with Dr. Swanson, Dent was transferred to the
infirmary by Dr. Larson because of “pain & soft tissue edema [on the left] mandible”
(Doc. 37-1, p. 3). Dent reported dental pain and “mild facial swelling” was observed
(Doc. 37-4, p. 6). Dr. McBride noted, however, that edema was not observed on Dent’s
prior visits in December, January, and early February 2015. On February 13, 2015, Dr.
Larson initiated the Augmentin regimen (Doc. 37-2, p. 4).
By February 18, 2015, Dent reported that he felt better, he was eating, sleeping,
and swallowing without complications, and he was discharged from the infirmary
(Doc. 37-4, p. 14-16). On March 3, an additional Augmentin regimen was prescribed,
along with ibuprofen. Dr. McBride noted that Dr. Swanson would perform the
extractions once the procedures were approved by the prison (Doc. 37-1, p. 4). On
March 19, 2015, the first available appointment (Doc. 37-4, p. 19), Dr. Swanson removed
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teeth #17 and #18. Dr. Swanson did not receive approval from the prison to remove
tooth #30 (Doc. 56-1, p. 6).
When Dr. McBride examined Dent one week later on March 25, 2015, the surgical
sites were healing within normal limits (Id. at 5). Dr. Swanson testified that, after the
extraction, pain would lessen by 72 hours post-op, that patients get back to normal in a
week’s time, and that the bony structure could take six months to heal (Doc. 56-1, p. 7).
At this appointment, Dent told Dr. McBride he was experiencing pain at tooth #30 and
again sought removal of that tooth (Doc. 37-1, p. 16). Dr. McBride testified that tooth
#30 had some gum recession, which could cause sensitivity, but that there was nothing
that looked extraordinary about #30. The filling looked good, there were no cracks, and
there was no new decay. (Id.). Dr. McBride told Dent that he could not give a definite
answer as to when tooth #30 could be extracted since the excision site of teeth #17 and
#18 was still healing. (Id. at p. 17).
By May 4, 2015, Dent reported great pain at tooth #30, which prevented eating
and sleeping and caused his neck to swell (Doc. 37-2, p. 6). Dr. McBride again explained
to Dent that the surgical site would need to be healed prior to additional extractions
(Id.). He also told Dent he was “on-line” for the extraction (Id.). Dr. McBride further
explained to Dent that tooth #30 could be extracted at Big Muddy since it was a routine
extraction (Id.). After initially refusing to have it done at Big Muddy, Dent agreed and
presented for the extraction on May 18, 2015 (Id.). The procedure was delayed, however,
because the Health Care Unit Administrator was not present. Dent indicated he had
sufficient ibuprofen and no pain that day, and the matter was rescheduled for three
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days later (Id. at 6-7). Tooth #30 was removed on May 21, 2015, without complications
(Id. at 7). Dent returned on June 16, 2015, with pain and swelling at the operation site;
however, Dr. McBride noted that the gum tissue “was closing very nicely for the time
frame” and there was no evidence of swelling. As a precaution, however, he dispensed
more penicillin and ibuprofen. The June 16, 2015 appointment was the last time Dr.
McBride examined Dent.
STANDARD
Summary judgment is proper only if the moving party can demonstrate “that
there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. RULE OF CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir.
2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833,
836 (7th Cir. 2005). The moving party bears the burden of establishing that no material
facts are in genuine dispute; any doubt as to the existence of a genuine issue must be
resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970);
Lawrence v. Kenosha Cnty., 391 F.3d 837, 841 (7th Cir. 2004).
A moving party is entitled to judgment as a matter of law where the non-moving
party “has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. The Seventh Circuit has stated that
summary judgment is “the put up or shut up moment in a lawsuit, when a party must
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show what evidence it has that would convince a trier of fact to accept its version of the
events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle
Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
DISCUSSION
The Supreme Court has recognized that “deliberate indifference to serious
medical needs of prisoners” may constitute cruel and unusual punishment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such
a claim, a plaintiff must show first that his condition was “objectively, sufficiently
serious” and second that the “prison officials acted with a sufficiently culpable state of
mind.” Greeno v. Daley, 414 F.3d 645, 652-653 (7th Cir. 2005) (citations and quotation
marks omitted).
The following circumstances could constitute a serious medical need: “The
existence of an injury that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical condition that significantly
affects an individual's daily activities; or the existence of chronic and substantial pain.”
Hayes v. Snyder, 546 F.3d 516, 522-23 (7th Cir. 2008) (quoting Gutierrez v. Peters, 111 F.3d
1364, 1373 (7th Cir. 1997)); see also Foelker v. Outagamie Cnty., 394 F.3d 510, 512-513 (7th
Cir. 2005) (“A serious medical need is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.”).
Second, a prisoner must show that prison officials acted with a sufficiently
culpable state of mind, namely, deliberate indifference. “Deliberate indifference to
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serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of
pain.’” Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “The
infliction of suffering on prisoners can be found to violate the Eighth Amendment only
if that infliction is either deliberate, or reckless in the criminal law sense.” Duckworth v.
Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). Negligence, gross negligence, or even
“recklessness” as that term is used in tort cases, is not enough. Id. at 653; Shockley v.
Jones, 823 F.2d 1068, 1072 (7th Cir. 1987). Put another way, a plaintiff must demonstrate
that the officials were “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists” and that the officials actually drew that
inference. Greeno, 414 F.3d at 653. “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence, . . . and a fact finder may
conclude that a prison official knew of a substantial risk from the very fact that the risk
was obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994) (citations omitted).
Here, there is no question that Dent suffered from an objectively serious medical
condition, i.e., the deterioration of his teeth and the resulting pain he experienced. See
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (“Tooth decay can constitute an
objectively serious medical condition because of pain and the risk of infection.”).
Instead, Defendants argue that Dent has failed to show they acted with deliberate
indifference, contending that Dent received timely and appropriate medical care.
According to Defendants, when Dent appeared for a routine examination and
complained of right jaw pain on October 23, 2014, he was examined and told to try
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sleeping on his left side to avoid tongue pressure on his teeth (Doc. 37-2, p. 1). He also
was told to follow up if the problem persisted. Dent did not follow up with regard to
this initial complaint.
When he complained of lower left jaw pain on December 23, 2014, he was
examined, an x-ray was taken,1 and conservative treatment was directed (antibiotics
and pain medication), because Dr. McBride found only moderate periodontal disease
and no abscess. Dent again was told to return if the pain persisted. When he did return
on January 6,, 2015, Dr. McBride directed a different antibiotic and pain medication.
Again, Dr. McBride saw no swelling or x-ray results that would have warranted
additional treatment.
On January 21, 2015, Dr. McBride, acknowledging he did not know what was
causing Dent’s symptoms, took steps to refer him to a specialist. When the referral was
approved by the prison, Dent saw Dr. Swanson on February 12, 2015. Dr. Swanson
noted tooth decay and early abscess, recommended that teeth #17 and #18 be extracted,
and suggested that tooth #30 be extracted. The day after that consultation, Dr. Larson
admitted Dent the infirmary and prescribed Augmentin, an antibiotic, per Dr.
Swanson’s orders. By February 18, 2015, Dent was feeling better and was discharged
from the infirmary.
Dent argues that the x-ray machine was outdated. There is no evidence, however, that it was
malfunctioning or unfit for its purpose.
1
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Teeth #17 and #18 ultimately were extracted by Dr. Swanson on March 19, 2015.2
Tooth #30 was extracted on May 21, 2015. Defendants acknowledge there was a “slight
delay” in certain aspects of Dent’s care; however, they argue that neither Dr. Larson nor
Dr. McBride were deliberately indifferent to Dent’s medical needs.
In response, Dent argues there was an unreasonable amount of delay from the
time he initially complained about pain in October 2014 to the final extraction in May
2015. Dent need not show that his complaints were literally ignored; rather, he must
show that Defendants’ responses to his complaints were “so blatantly inappropriate as
to evidence intentional mistreatment likely to seriously aggravate his condition.”
Greeno, 414 F.3d at 653 (quotation marks omitted). Delay in access to medical care can
show deliberate indifference. See Arnett v Webster, 658 F.3d 742, 753 (7th Cir. 2011);
Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008). “The length of delay that is
tolerable depends on the seriousness of the condition and the ease of providing
treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).
In this case, the length of delay does not amount to deliberate indifference. When
Dent first complained of right jaw pain in October 2014, it was during a routine dental
exam. He was told to try a different sleeping position, and his complaints regarding the
right jaw pain stopped. When Dent began complaining of left jaw pain, he was treated
with pain medication and antibiotics. There is no showing that this treatment decision
As noted above, once the procedure was approved by the prison, a nurse made the appointment for
March 19, 2015, Dr. Swanson’s first available appointment.
2
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was not based on medical judgment. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).
Furthermore, when he returned in early January 2015 and complained that the
treatment was not working, different medication was prescribed (amoxicillin for
penicillin and Tylenol for ibuprofen) and additional diagnostic tests were performed. At
this point, Dr. McBride neither observed nor believed that additional care was
warranted.
Dr. McBride did not simply persist in an ineffective course of treatment. See
Greeno, 414 F.3d at 655 (“dogged persist[ence] in a course of treatment known to be
ineffective can be an Eighth Amendment violation”). Instead, he changed medication
and ordered more tests. Dr. McBride was not required to blindly and immediately
prescribe the most potent pain medication available or immediately conduct surgery. A
medical professional is only required to act in a manner that does not exhibit deliberate
indifference. Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (“A medical professional is
entitled to deference in treatment decisions unless ‘no minimally competent
professional would have so responded under those circumstances.’”) (quoting Collignon
v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir. 1998)).3
In Dr. McBride’s request for Dent to be referred to a specialist, Dr. McBride stated that he would “really
appreciate having Dr. Swanson evaluate [the] situation . . . to determine if there is in fact something
occurring that I can’t detect” (Doc. 37-3, p. 1). He then states: “[Dent] has filed grievance and may be in
the initiation of a lawsuit not absolutely clear at this time. This needs to be resolved now” (Id.). Dent
argues, therefore, that Dr. McBride should have referred him to a specialist earlier and only considered a
referral after Dent threatened to sue. (Doc. 56, p. 17). This evidence is unconvincing. While Dr. McBride
may have been concerned about a potential lawsuit, it is clear, when considering the entire referral, that
Dr. McBride sincerely believed additional care was warranted and there was nothing further he could do
at the prison. Dr. McBride did exactly what is required of him—he referred a patient to a specialist when
there was no further treatment he could perform.
3
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When it became clear to Dr. McBride on January 21, 2015, that Dent required a
specialist, he referred Dent to an oral surgeon, Dr. Swanson. Again, this is not a
situation where Dent’s condition was being ignored or where Dr. McBride persisted in
an ineffective course of treatment. The fact that Dent may not have received immediate
and complete pain relief or an instant resolution of his dental problems is not
dispositive. See e.g. Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“It would be nice if
after appropriate medical attention pain would immediately cease, its purpose fulfilled;
but life is not so accommodating. Those recovering from even the best treatment can
experience pain. To say the Eighth Amendment requires prison doctors to keep an
inmate pain-free in the aftermath of proper medical treatment would be absurd.”).
Upon referral, Dent was seen by Dr. Swanson on February 12, 2015. Dr. Swanson
did not direct any additional pain medication and did not indicate Dent’s condition was
an emergency that required immediate treatment. By February 18, 2015, Dent reported
that he was feeling better, and he was scheduled for the next available appointment
with Dr. Swanson for the first extractions. There is no evidence that any delay in
ultimately extracting teeth #17 and #18 was unjustified.
As to the extraction of tooth #30, which Dr. Swanson suggested but did not
recommend, there is again no showing of unreasonable delay. While Dr. Swanson
believed that all three teeth could be extracted at one time, only two of the teeth were
approved by the prison to be removed. And Dr. McBride elected to ensure that the
surgery site for teeth #17 and #18 had healed (as the healing process could take up to
six months) prior to directing additional surgery.
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Mere disagreement between a prisoner and his doctor, or even between two
medical professionals, about the proper course of treatment generally is insufficient, by
itself, to establish deliberate indifference. Greeno, 414 F.3d at 653. Here, there was no
disagreement between Dr. McBride and Dr. Swanson about the urgency of removing
tooth #30. See e.g. Zaya v. Sood, 836 F.3d 800, 802 (7th Cir. 2016) (finding that summary
judgment may not be warranted when a treating physician disregards, as oppose to
disagrees, with a specialist’s recommendations). There was no recommendation that
tooth #30 should be immediately extracted by Dr. Swanson and no evidence that Dr.
McBride’s decision was not based on medical judgment.
Finally, the parties group Dr. Larson and Dr. McBride together in making their
arguments. Dr. Larson’s treatment of Dent is limited to the time period in February 2015
when Dent was housed in the infirmary. During Dr. Larson’s treatment of Dent, he was
also under the care of a dentist and a specialist for his dental problems. There is no
showing that Dr. Larson’s treatment was deficient or that he provided care that was
inconsistent with the directives of either Dr. Swanson or Dr. McBride. Dr. Larson
approved Dr. McBride’s referral to a specialist and otherwise approved the teeth
extractions (Docs. 37-3, 37-7). As indicated above, no jury would find that there was
intolerable delay in the treatment of Dent’s dental needs.
CONCLUSION
For the reasons set forth above, the motion for summary judgment filed by
Defendants Randal McBride and Dennis Larson (Doc. 36) is GRANTED. The Clerk of
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Court is DIRECTED to enter judgment in favor of Defendants and against Plaintiff and
to close this case.
IT IS SO ORDERED.
DATED: September 22, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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