Wilson v. Larned Correctional Mental Health Facility

Filing 70

MEMORANDUM AND ORDER ENTERED: The parties are notified that the court is considering the entry of summary judgment on behalf of defendants pursuant to Rule 56(f)(3). Plaintiff is granted to and including July 15, 2011, to respond to this order and s et forth any ground, legal or factual, in opposition to the entry of summary judgment in this matter. The failure to provide a timely response will result in the entry of summary judgment on behalf of defendants without additional prior notice to the plaintiff. Signed by Senior District Judge Sam A. Crow on 6/15/2011. (Mailed to pro se party Richard Anthony Wilson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICHARD ANTHONY WILSON,
Plaintiff,
CIVIL ACTION
No. 08-3239-SAC

vs.
CORRECT CARE SOLUTIONS,
et al.,

Defendants.

RICHARD A. WILSON,
Plaintiff,
CIVIL ACTION
vs.

NO. 08-3286-SAC

CORRECT CARE SOLUTIONS,
et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a consolidated action of two complaints
filed pursuant to 42 U.S.C. § 1983.

Plaintiff proceeds pro se

and in forma pauperis and commenced this action while incarcerated in a state correctional facility.

He complains that

following dental work, he suffered from pain, bleeding, and
infections for an extended period of time and thereafter was
denied adequate dentures.
The court has studied the record developed in this matter
and enters the present order to advise the parties that it is
considering the entry of summary judgment in favor of defendants
pursuant to Rule 56(f)(3).
Summary judgment standard
Summary judgment is governed by Rule 56 of the Federal
Rules of Civil Procedure.

As amended effective December 1,

2010, Rule 56(f) provides:
(f) Judgment Independent of the Motion. After giving
notice and a reasonable time to respond, the court
may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised
by a party; or
(3) consider summary judgment on its own
after identifying for the parties material
facts that may not be genuinely in dispute.
Summary judgment is appropriate where there is no genuine
issue of material fact and a party is entitled to judgment as a
matter of law.

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).
Where a reasonable juror could not return a verdict for the
non-moving party, there is no need for a trial, and summary

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judgment is proper.

Celotex, 477 U.S. at 323.

The entry of

summary judgment is not a “disfavored procedural shortcut,” but
rather an important procedure “designed to secure the just,
speedy and inexpensive determination of every action.”

Id. at

372 (quoting Fed.R.Civ.P. 1).
In resisting a motion for summary judgment, a party may not
rely on bare allegations or denials but instead must present
specific facts showing that there is a genuine issue of material
fact for trial and significant supporting evidence.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The court identifies the following facts and legal authorities as the bases for the entry of summary judgment in favor of
the defendants.
Facts
1. Plaintiff was an inmate in the custody of the Kansas
Department of Corrections from approximately September 4, 2007,
to July 10, 2009.

During this period, he was briefly released

to the custody of Oklahoma authorities.

(Doc. 67, Martinez

report, p.2, ¶ 1 and Ex. 1.)
2. On September 10, 2007, plaintiff’s dental status was
evaluated by an LPN.

He reported tooth pain for approximately

one year prior to the evaluation, constant discomfort, and
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sensitivity to cold foods and solid foods.

Notes show his

overall dental health was poor, with loose teeth and several
missing teeth.

He was given medication.

(Id., p. 6, ¶ 5B, and

Ex. 3.)
3. On September 18, 2007, plaintiff was diagnosed with
gingivitis.
created.

He was X-rayed and a chart of his teeth was

(Id., ¶ 5C and Ex. 5.)

4. On September 25, 2007, plaintiff reported during a
mental health visit that he could not eat due to dental pain.
(Id., ¶ 5D and Ex. 6.)
5. On October 10, 2007, plaintiff reported during a mental
health visit that he had been grinding his teeth.

(Id., p. 7,

¶ 5E and Ex. 7.)
6. During the time relevant to this action, Correct Care
Solutions (CCS) was the health care provider at the Larned
Correctional

Mental

Health

Facility

(LCMHF).

(Id.,

p.

2,

Uncontroverted Statement of Facts, ¶ 2.)
7. Dr. Sean Fay, a defendant in this action, is employed by
CCS as a dentist.
dental

care

to

In the course of his employment, he provided
inmates

at

Correctional Facility (ECF).

the

LCMHF

and

the

Ellsworth

(Id., p. 3, ¶ 3.)

8. Defendant Fay examined plaintiff on December 4, 2007, in
4

response to plaintiff’s complaint of tooth pain.

Following the

evaluation, defendant Fay explained his findings to plaintiff.
Plaintiff

signed

a

consent,

and

defendant

Fay

removed

plaintiff’s remaining six upper teeth and sutured his top gum.
Plaintiff was to return the next week for removal of the
sutures.
teeth.

The procedure left plaintiff with only front lower

(Id.)

9. On December 7, 2007, plaintiff complained of bleeding
and pain in his gums.

Defendant Fay found plaintiff’s gums

swollen but noted no bleeding, redness, or draining.

(Id.)

10. On December 14, 2007, defendant Fay again examined
plaintiff

in

response

to

treatments were continued.
11.

On

December

a

complaint.

Medications

and

(Id.)

19,

2007,

defendant

Fay

examined

plaintiff’s gums and found severe inflammation and infection.
He prescribed medication.
12.

(Id.)

On December 26, 2007, defendant Fay found plaintiff

had less inflammation and noted the healing was unusually slow.
Plaintiff complained he was not receiving a soft diet, and
defendant Fay asked the director of nursing to ensure plaintiff
was receiving an appropriate diet.
13.

(Id.)

On January 8, 2008, plaintiff complained of gum pain,
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and defendant Fay noted canker sores in his upper gum area.
Defendant Fay suspected plaintiff’s lower teeth were irritating
his gum.

(Id.)

14. On January 9, 2008, defendant Fay saw plaintiff for
another complaint of gum pain.

Plaintiff reported he was

digging “black stuff” from his gum.
tissue was nearly healed.

Defendant Fay noted the

He offered to have plaintiff’s diet

changed to a blenderized diet so that he would not have to chew.
Plaintiff declined.
15.

(Id., p. 4.)

On April 23, 2008, plaintiff requested dentures, and

defendant Fay submitted a request.

He advised plaintiff that

there was a waiting period and that there could be a wait of
several months.
16.

(Id.)

On June 3, 2008, defendant Fay saw plaintiff for

complaints of gum pain, discomfort with both hot and cold foods,
and intermittent pain.

Defendant Fay discovered a bone chip had

emerged from plaintiff’s gum line.

Defendant Fay scheduled a

time to see plaintiff, but plaintiff was transferred to the
Lansing Correctional Facility, and the appointment did not take
place.

(Id.)

17. Defendant Fay saw plaintiff on August 24, 2008, and
plaintiff inquired about the status of the request for dentures.
6

(Id.)
18. Defendant Fay saw plaintiff on September 3, 2008, to
treat his lower teeth and to make impressions for dentures.
However, because plaintiff suffers from neck and facial tics and
twitching, defendant Fay was unable to treat his teeth.

He

believed, however, that he would be able to obtain a good
impression for purposes of fabricating dentures.

(Id.)

19. Defendant Fay saw plaintiff on October 1, 2008, and was
unable to make denture impressions because plaintiff was not
able to tolerate the process.

Plaintiff was scheduled for

another appointment in two weeks to allow for fabrication of a
custom device to prepare the impression.
20.
2008.

(Id.)

Defendant Fay attempted the procedure on October 15,

He obtained a denture impression and sent it for use in

a prosthetic to test on plaintiff.
21.

(Id.)

On October 22, 2008, plaintiff selected the color of

his dentures.

(Id., p. 5.)

22. On December 31, 2008, plaintiff received his dentures.
Defendant Fay examined the fit, noted that plaintiff’s speech
quality was good, and advised plaintiff to submit a request if
he needed additional attention.

(Id.)

23. On January 14, 2009, plaintiff complained about the
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functioning
Defendant

of

Fay

his

dentures

discussed

the

and

pressure

complaints

under

nose.

plaintiff

and

determined that he was not using the dentures properly.

He

counseled plaintiff on proper use.

with

his

(Id.)

24. On February 4, 2009, defendant Fay adjusted plaintiff’s
dentures to accommodate his sensitive gag reflex.

This was the

final contact between defendant Fay and plaintiff.

(Id.)

25. Defendant Fay states that his treatment of plaintiff
conformed with the standard of care, that plaintiff consented to
the removal of his teeth, that plaintiff’s healing process was
slow, and that he offered plaintiff all necessary treatment.
(Id.)
Legal authorities
The Eighth Amendment requires prison officials to provide
adequate medical care, including dental care, to prisoners.
Estelle v. Gamble, 429 U.S. 97, 103 (1976); Ramos v. Lamm, 639
F.2d 559, 574 (10th Cir. 1980).
To state a claim under the Eighth Amendment for failure to
provide constitutionally adequate medical care, “‘a prisoner
must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.’”
Stotts,

9

F.3d

1475,

1477

(10th
8

Cir.

Olson v.

1993)(emphasis

omit-

ted)(quoting Estelle v. Gamble, 429 U.S. at 106).
The deliberate indifference standard has two elements:
first, an objective element that requires a showing that the
pain or deprivation is sufficiently serious, and second, a
subjective

element

requiring

a

showing

that

the

defendant

officials acted with a sufficiently culpable state of mind.
Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 809 (10th
Cir.

1999)(citing

(1991)).

Wilson

v.

Seiter,

501

U.S.

294,

298-99

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.”

Ramos v. Lamm, 639 F.2d 559, 575 (10th

Cir. 1980); Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
1999).
In contrast, a mere difference of opinion between a medical
provider and the prisoner concerning the proper treatment is not
sufficient to state a claim under the Eighth Amendment.
639 F.2d at 575.

Ramos,

Nor does delay in providing medical care

violate the Eighth Amendment unless there is a showing that the
delay caused substantial harm.
(10th Cir. 1993).

Olson v. Stotts, 9 F.3d 1475

Finally, “[a] negligent failure to provide

adequate medical care, [and] even one constituting medical

9

malpractice, does not give rise to a constitutional violation.”
Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir.
1999).
The court’s review of the record supports the conclusion
that plaintiff had a serious medical need, and that he was
afforded a course of dental treatment that was responsive to his
complaints.

Plaintiff was seen by defendant Fay on a number of

occasions, and, over a period of months, plaintiff received
medication,

dental

extractions,

dentures,

and

examinations.

Defendant Fay ordered a soft diet for plaintiff, monitored his
healing process, and counseled him on the proper use of the
dentures.
While plaintiff continued to suffer from discomfort, the
present record does not support a conclusion that his dissatisfaction was more than a difference of opinion or that defendant
Fay acted with any deliberate indifference in the provision of
dental

treatment.

Rather,

it

appears

defendant

Fay

was

responsive to plaintiff and provided an array of treatment
intended to optimize his dental condition.
Accordingly, the court advises plaintiff that to avoid the
entry of summary judgment, he must respond to this order on or
before July 15, 2011, and must provide any objection to the

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entry of summary judgment.

Plaintiff may not rely on a general

denial but must provide specific facts or legal arguments to
demonstrate that defendants are not entitled to summary judgment.
IT IS, THEREFORE, BY THE COURT ORDERED the parties are
notified that the court is considering the entry of summary
judgment on behalf of defendants pursuant to Rule 56(f)(3).
IT IS FURTHER ORDERED plaintiff is granted to and including
July 15, 2011, to respond to this order and set forth any
ground, legal or factual, in opposition to the entry of summary
judgment in this matter.

The failure to provide a timely

response will result in the entry of summary judgment on behalf
of defendants without additional prior notice to the plaintiff.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 15th day of June, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge
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