Edminster v. Dedeke et al

Filing 52

MEMORANDUM AND ORDER ENTERED: Defendants Advanced Correctional Healthcare and Melissa Wardrop's Motion for Judgment on the Pleadings 41 is granted. Defendant "Doctor Bob" is dismissed from the action. This case is closed. Signed by District Judge Carlos Murguia on 04/18/18. Mailed to pro se party David Bently Edminster by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID BENTLY EDMINSTER,
Plaintiff,
v.

Case No. 16-3176-CM

SHERIFF DEDEKE, et al.,
Defendants.

MEMORANDUM AND ORDER
Pro se plaintiff David Bently Edminster filed suit against Leavenworth County defendants
Sheriff Dedeke, Lt. Lorenzo, Lt. O’Brien, Sgt. Sibold, Sgt. Masoner, Sgt. Patterson, and Major
Dedeke; and defendants Advanced Correctional Healthcare, Melissa Wardrop, and “Doctor Bob,”
alleging violations of his Eighth and Fourteenth Amendment rights for deliberate indifference and
retaliation while he was incarcerated in the Leavenworth County jail. The matter is now before the
court on defendants Advanced Correctional Healthcare and Melissa Wardrop’s Motion for Judgment
on the Pleadings (Doc. 41). Plaintiff failed to timely respond to defendants’ motion and did not
respond to the Order to Show Cause (Doc. 49) issued by this court on January 23, 2018, in which
plaintiff was given until February 2, 2018 to respond to defendants’ motion. Because plaintiff failed to
comply with the court’s order, the court will consider defendants’ motion as uncontested pursuant to
D. Kan. Rule 7.4(b).
The court, however, cannot grant defendants’ motion solely based on plaintiff’s failure to
respond. See Issa v. Comp USA, 354 F.3d 1174, 1177–78 (10th Cir. 2003) (“[E]ven if a plaintiff does
not file a response to a motion to dismiss for failure to state a claim, the district court must still
examine the allegations in the plaintiff’s complaint and determine whether the plaintiff has stated a

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claim upon which relief can be granted.”). The court, therefore, will review defendants’ motion while
liberally interpreting the allegations in plaintiff’s pro se complaint. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
I.

Background

The following facts are summarized from plaintiff’s second amended complaint. Plaintiff
began serving a one-year commitment at the Leavenworth County jail on March 2, 2016. Upon
arrival, plaintiff was housed in “med holding” so that jail staff could assess his many medical issues
including rheumatoid arthritis, degenerative disc disease, scoliosis, sciatica, and dental issues.
Defendant Wardrop, a nurse working for defendant Advanced Correctional Healthcare, told plaintiff he
would not be given painkillers unless he had chronic “life threatening” pain, otherwise he could
purchase painkillers from the commissary. Defendant Wardrop eventually prescribed plaintiff an antidepressant and antibiotics for his teeth. Plaintiff was “denied dental call out” in April 2016 and his
tooth infection returned after he took his prescribed antibiotics. After plaintiff fell walking to the
bathroom and broke his jaw, he was referred to KU Medical Center for oral surgery. He was again
denied dental call out and was only given his morning antibiotics despite being prescribed both
morning and evening antibiotics. After plaintiff filed a grievance, he began getting his morning and
evening medications.
Plaintiff was placed on a dental diet and was restricted from purchasing any sweet items from
the commissary. His access to over-the-counter pain medication was restricted. Plaintiff first saw the
dentist on August 16, 2016, who he claims told him he should have his teeth removed but refused to
remove them. The dentist instead placed him on another regimen of antibiotics.
Plaintiff continued to experience pain from his dental issues and filed an emergency grievance,
which he claims was denied. He continued to submit grievances claiming he was denied over-the-

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counter pain medication. After experiencing extreme pain for two weeks, plaintiff finally saw the
dentist, who prescribed him an antibiotic and said he would remove his teeth. Plaintiff asked to have
his antibiotics changed as he felt they were not helping his infection, which he claims was denied by
defendant Wardrop. On November 29, 2016, defendant “Dr. Bob” arrived and stated he would not
extract plaintiff’s teeth because of the infection in his mouth.
On August 18, 2016, plaintiff filed the present case in this court. In his second amended
complaint, filed March 29, 2017, plaintiff alleges defendants violated his Eighth and Fourteenth
Amendment rights because he was denied medical and dental care and he accuses defendants of
retaliation by denying dental visits, denying him sweets at meals and access to sweets at the
commissary, and for “stone-wall[ing]” his attempts to use the grievance process to address his issues.
On April 18, 2017, United States Senior District Court Judge Sam A. Crow dismissed plaintiff’s claims
for injunctive relief and claims against defendants in their official capacities. On January 26, 2018,
this court granted the county defendants’ Motion for Summary Judgment (Doc. 50).
II.

Legal Standards

The court reviews a Rule 12(c) motion for judgment on the pleadings under the same standards
as a Rule 12(b)(6) motion to dismiss. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir.
1992) (citation omitted). To withstand a motion to dismiss under 12(b)(6), a complaint must contain
“enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.’”
Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)). A claim is plausible when “the pleaded factual content allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

When the complaint contains well-pled factual

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allegations, a court should “assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id.
III.

Analysis

Defendants move for judgment on the pleadings, arguing plaintiff has failed to allege any facts
that give rise to relief.
Plaintiff first claims his Eighth and Fourteenth Amendment rights were violated as a result of
“deliberate indifference” and “cruel and unusual punishment,” arguing generally that he was denied
adequate dental and medical care.
The government has an obligation to “provide medical care for those who it is punishing by
incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Prison officials’ failure to provide proper
medical care only violates the Eighth Amendment if a plaintiff can prove a “deliberate indifference to
serious medical needs.” Id. at 106 (“It is only such indifference that can offend ‘evolving standards of
decency’ in violation of the Eighth Amendment.’”). To prove deliberate indifference, a plaintiff must
meet both subjective and objective components. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000). The subjective component is met if “a prison official ‘knows of and disregards an excessive risk
to inmate health or safety.’” Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The objective
component requires a deprivation that is “sufficiently serious.” Id.
Mere negligence in treatment is not sufficient to state a medical mistreatment claim under the
Eighth Amendment. Gamble, 429 U.S. at 103. And a disagreement with the care offered does not
establish the denial of constitutionally adequate medical care. See White v. Goff, No. 07-3311-SAC,
2011 WL 624059, at *6 (D. Kan. Feb. 11, 2011).
Based on the allegations in his second amended complaint, plaintiff seems to claim his rights
were violated because he was not given proper dental care when he had a severe tooth infection and

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that he was denied various medications including over-the-counter pain pills. But in his second
amended complaint, plaintiff also admits he was given prescription medications, he was placed on
antibiotics for an infection in his mouth, was taken to KU Medical Center for oral surgery, and was
seen by a dentist multiple times. In a response to one of his grievances—which plaintiff attached to his
second amended complaint—jail staff informed plaintiff that, after reviewing his file, it was discovered
he had a pattern of noncompliance with his medications, that he was only denied over-the-counter pain
medications when he had purchased the maximum dosage allowed, and that he was placed on the
dental diet due to deteriorating oral health. In responding to plaintiff’s grievance appeal, Defendant
Sheriff Dedeke noted that plaintiff had made several requests for dental treatment and was educated
regarding proper dental hygiene, but that plaintiff had elected not to participate in intervention
techniques designed to improve the dental issues he was experiencing.
The court finds plaintiff has not pled sufficient facts to show defendants were deliberately
indifferent to his medical needs. Instead, the facts pled in the second amended complaint show that
medical staff at the jail attempted to address his dental issues.

Even if these attempts were

unsuccessful, or if plaintiff disagreed with the course of treatment, plaintiff has not shown his medical
care, or lack thereof, rises to the level of deliberate indifference.
Plaintiff also claims defendants retaliated against him by denying him sweets in his daily meals
and refusing to sell him sweets at the commissary. He argues that he attempted to use the grievance
process but was “stone-walled” by defendants. It is true that prisoners have a First Amendment right
to be free from retaliation for filing grievances. See Leek v. Miller, 698 F. App’x 922, 925 (10th Cir.
2017). To prove retaliation in violation of the First Amendment, a plaintiff must show:
(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the
defendant’s actions caused the plaintiff to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity; and (3) that the

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defendant’s adverse action was substantially motivated as a response to the
plaintiff’s exercise of constitutionally protected conduct.
Id. (citing Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Here, there are no facts in the second amended complaint that would support the allegation that
plaintiff was denied medical care because of his use of the grievance procedures. As noted above,
plaintiff was provided medical and dental care on a routine and ongoing basis. For these reasons the
court grants defendants’ motion for judgment on the pleadings.
Plaintiff was also ordered to show cause as to why defendant “Doctor Bob” should not be
dismissed from the action as he was never served. Because plaintiff has not responded, the court finds
defendant Doctor Bob should be dismissed.
IT IS THEREFORE ORDERED that defendants Advanced Correctional Healthcare and
Melissa Wardrop’s Motion for Judgment on the Pleadings (Doc. 41) is granted.
IT IS FURTHER ORDERED that defendant “Doctor Bob” is dismissed from the action.
This case is closed.
Dated April 18, 2018, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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