Buculei v. United States of America et al

Filing 95

Judge Denise J. Casper: ORDER entered. MEMORANDUM OF DECISION - After consideration of the evidence presented at trial and in light of the aforementioned findings of fact and conclusions of law, this Court finds that judgment will enter in favor of the Defendant. In light of this ruling, the Court DENIES the Defendant's motion for judgment as a matter of law, D. 88, as moot.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
CATALIN LIVIO BUCULEI,
)
)
Plaintiff
)
)
v.
)
Civil Action No. 09-40215-DJC
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
_________________________________________ )
MEMORANDUM OF DECISION
September 30, 2013
I.

INTRODUCTION
Plaintiff Catalin Livio Buculei (“Buculei”) brings this action against the Defendant, the

United States of America, under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674 et.
seq. Buculei is an inmate confined at the Federal Correctional Institution (“FCI”) in Fort Dix,
New Jersey. Prior to his transfer to Ft. Dix, Buculei was an inmate at the Federal Medical Center
in Devens, Massachusetts (“FMC Devens”). Buculei alleges that the staff at FMC Devens failed
to provide him with timely, adequate and proper dental care that resulted in significant dental
pain and suffering.
The claims now before this Court are the remaining claims contained in Count I of the
complaint that arose on or after December 16, 2006, as well as Count II of the complaint.
Buculei v. United States, No. 09-cv-40215, 2011 WL 3439192, at *5 (D. Mass. August 4, 2011)
(“Buculei I”). Having held a bench trial over the course of four days between November 16,
2012 and December 20, 2012 as to these remaining claims and having received proposed

findings of fact and conclusions of law from the parties, D. 76, 83, 91, 92, the Court now issues
its findings of facts and conclusions of law.
II.

PROCEDURAL HISTORY
Buculei filed his initial complaint in this case pro se on December 2, 2009. D. 1. On

January 20, 2010, the Court (Tauro, J.) granted Buculei’s request for pro bono counsel, D. 5, 8,
13, and Buculei’s counsel filed his notice of appearance on March 2, 2010. D. 14. On March
10, 2010, Buculei filed the first amended complaint, which included only the allegations
comprising Count I. D. 15. Buculei filed a second amended complaint, including the allegations
that comprise both Count I and Count II, on May 17, 2010. D. 20. The second amended
complaint was superseded on May 26, 2010 by the third amended complaint (the “complaint”),
which also included Count I (concerning claims of allegedly inadequate dental care by the
Defendant in 2006 and 2007) and Count II (concerning claims of allegedly inadequate dental
care by the Defendant in and after June 2009) and which remains the operative complaint. D. 21.
After the Defendant moved to dismiss, D. 37, the case was reassigned from Judge Tauro’s
session to this session, D. 43.
On November 29, 2010, the Defendant moved to dismiss the complaint for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). D. 37. On August 4, 2011, this
Court granted in part and denied in part the Government’s motion, holding that this Court lacked
jurisdiction over the portions of Count I that arose on or before December 15, 2006 because
those portions were time-barred. Buculei I, 2011 WL 3439192, at *5.
On June 7, 2012, Defendant moved for summary judgment on the remaining claims
before the Court, namely, the part of the FTCA claim in Count I that arose after December 15,
2006 and Count II of the complaint. D. 57. The Defendant argued that it was entitled to

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summary judgment on the ground that, based upon the undisputed issues of material fact,
Buculei could not show that the staff at FMC Devens had been negligent in its dental care and, in
particular, he was unable to show that his dental care fell below a reasonable standard of care or
that any such allegedly deficient care caused his pain and suffering. D. 58 at 4-13. On August
7, 2012, the Court denied the Defendant’s motion for summary judgment, concluding that the
Defendant had failed to show that there was no genuine issue of material fact as to the remainder
of Buculei’s claims. D. 67 at 3; Buculei v. United States, No. 09-cv-40215-DJC, 2012 WL
3263611, at *2 (D. Mass. August 7, 2012) (“Buculei II”). The Court noted that although the
parties agreed that Buculei must meet the negligence standard of proof to prevail both on the
remainder of Count I and Count II, “Buculei contends . . . that whether FMC-Devens complied
with its own policies regarding ‘cop-outs’ (i.e., in this context, requests by Buculei for medical
care), whether it responded to Buculei’s multiple cop-outs and did so in timely manner bears
upon whether Defendant breached its duty to provide a reasonable standard of care for Buculei’s
dental treatment.” D. 67 at 3; Buculei II, 2012 WL 3263611, at *2. The Court agreed with this
contention that “[w]hether there was unreasonable delay in responding to Buculei’s cop-outs, a
point that Defendant does not appear to concede, bears upon whether it provided a reasonable
standard of care” and, therefore, the matter should proceed to trial. D. 67 at 3; Buculei II, 2012
WL 3263611, at *2.
The matter proceeded to a bench trial on the portion of Count I that occurred after
December 15, 2006 and Count II. The trial began on November 16, 2012 (“Trial Day 1”) and
continued with testimony on November 26, 2012 (“Trial Day 2”) and December 3, 2012 (“Trial
Day 3”). After the submission of supplemental proposed findings of fact from counsel, D. 91,
92, the Court heard closing arguments on December 20, 2012 (“Trial Day 4”).

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At trial,

plaintiff’s counsel called Buculei as his sole witness. D. 84, 86. The Defendant called Dr. BrittStill, a dentist formerly employed at FMC Devens, and Dr. Sandra Howard, a doctor and the
Clinical Director at FMC Devens since 2001. D. 90. Both at the close of Buculei’s case and
after Defendant rested, the Defendant moved for judgment as a matter of law pursuant to Fed. R.
Civ. P. 52(a), (c). D. 88. The Defendant sought this ruling on much the same grounds that it had
sought summary judgment, compare D. 58 with D. 88, but it also noted that the testimony at trial
also revealed that Buculei’s commissary purchases included “weekly purchases of dietary items
consistent with high acid content, high sugar, and hard foods” which Dr. Britt-Still, a dentist,
explained “can aggravate pre-existing dental issues, potentially induce traumatic conditions to
the teeth and surrounding tissues, as well as contribute to ongoing poor oral health.” D. 88 at 12.
The Court deferred ruling on the motion, but heard closing arguments in the trial and arguments
on the motion on Trial Day 4. D. 90, 94.
III.

FINDINGS OF FACT
In light of the evidence presented to the Court, the Court makes the following findings of

fact:
A.

The Parties

1.

Prior to his transfer to Ft. Dix, Buculei was an inmate at FMC Devens. He

arrived there in May 2004 and remained at FMC Devens until the end of April 2010. Buculei
Testimony, Trial Day 1.1
2.

At trial, Buculei testified regarding his medical and dental treatment at FMC

Devens. Buculei Testimony, Trial Day 1 and Trial Day 2.

1

 Final transcripts of the trial are not yet available. The Court relies upon the evidence
presented at trial, the draft transcripts of the trial and the parties’ proposed findings of fact and
conclusions of law in arriving at its findings and conclusions.  

4

3.

At trial, Dr. Britt-Still and Dr. Howard, the defense witnesses, testified regarding

Buculei’s medical and dental treatment at FMC Devens.
4.

Dr. Darcel Britt-Still graduated from Temple University School of Dentistry in

1980, and has been practicing as a dentist in good standing for over thirty-two years. Dr. BrittStill was the Chief Dental Officer at FMC Devens for two years and served in that capacity at
the time that Buculei was transferred from FMC Devens to Ft. Dix. She treated Buculei on
several occasions. Prior to becoming Chief Dental Officer at FMC Devens, Dr. Britt-Still
provided dental care and treatment to inmates at FMC Devens as part of her duties as a
temporary duty (“TDY”) dentist. A TDY dentist provides care as a visiting dentist at the
request of the institution when additional assistance is required or to provide dental coverage if
a dentist is not available at an institution. Britt-Still Testimony, Trial Day 3.
5.

Dr. Sandra Howard received her medical degree from the New Jersey College of

Medicine and Dentistry in 1977. She is a licensed medical doctor in good standing. Dr.
Howard became the Clinical Director of FMC Devens in 2001 and, at the time of trial,
continued to serve in this capacity. Dr. Howard was the Clinical Director at FMC Devens while
Buculei was incarcerated there and during the time periods relevant to the complaint. At no
time during the time that Buculei was incarcerated at FMC Devens did he ask to speak with Dr.
Howard, as Clinical Director, about any of his health difficulties. Howard Testimony, Trial Day
3; Exh. 61.
B.

Dental Staff at FMC Devens

6.

At all times relevant to Buculei’s complaint, Dental Officers were employed at

FMC Devens. Dr. Van Ells was a Dental Officer from 2002 through 2006; Dr. Morazan was a
Dental Officer from 2006 until sometime in 2008; Dr. Gelfand was a Dental Officer from

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sometime in 2007 or 2008 through July 2009; and Dr. Britt-Still began as the Chief Dental
Officer in August 2009 and served in that capacity at the time that Buculei was transferred from
FMC Devens. Britt-Still Testimony, Trial Day 3; Howard Testimony, Trial Day 3. During the
time that Dr. Morazan was on medical leave between March and July 2007, the facility had the
dental hygienist and assistant on staff, along with the medical duty officer and TDY dentists to
cover. Howard Testimony, Trial Day 3.
7.

If a dentist was absent from FMC Devens, a visiting dentist was available to see

inmates or inmates were referred out of the institution to a contract dentist or emergency room
in the case of an emergency. Buculei Testimony, Trial Day 2; Howard Testimony, Trial Day 3.
Buculei agreed that, at times during his incarceration at FMC Devens, he was seen by a visiting
dentist. Buculei Testimony, Trial Days 1 and 2. Some coverage would also be provided by the
medical duty officer, a doctor, on staff at FMC Devens. Howard Testimony, Trial Day 3.
C.

Buculei’s Initial Dental Examination and Initial Care Upon Arrival at FMC
Devens

8.

Upon arrival at FMC Devens, Buculei received a copy of the Admissions and

Orientation handbook that provided, inter alia, that inmates had “the right to dental care as
defined in the Bureau of Prisons’ policy to include preventative services, emergency care and
routine care.” Exh. 1 at 12.
9.

On June 2, 2004, shortly after Buculei’s arrival at FMC Devens, Buculei was

screened through an Admission and Orientation (“A&O”) dental examination which consisted
of a charting of Buculei’s mouth along with an explanation to Buculei about how to access
dental care and services at FMC Devens. During this orientation, Buculei was instructed about
“cop-out” procedures and how to make appointments with the dental department for an
examination or cleaning. Buculei was also instructed on sick call protocol and how to submit a
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request to be seen by medical or dental staff. Britt-Still Testimony, Trial Day 3; Howard
Testimony, Trial Day 3.
1.
10.

The Cop-out Procedure

At FMC Devens, cop-outs are one means by which an inmate may communicate

with FMC Devens staff about an issue including medical or dental issues. Howard Testimony,
Trial Day 3. It is a form of request made by an inmate. Buculei Testimony, Trial Day 1.2
11.

Buculei would deposit his cop-outs in the dental services box at the facility,

addressed to the chief dental officer. Buculei Testimony, Trial Day 1.
12.

The Admissions and Orientation handbook provides, in relevant part:

Inmate Request to a Staff Member (Cop-Out) – Individuals requesting routine dental care
(i.e., cleanings, fillings, comprehensive examinations) are to submit a cop-out directly to
the Dental Department (Note – all Cop-Outs will be responded to as quickly as possible.
If an inmate does not receive a response within a reasonable amount of time, they should
contact the Dental Department to check to see if it was received).
Emergencies – Inmates that experience a dental emergency (pain, swelling, infection or
trauma) are to sign-up for the next dental sick call. If an emergency occurs outside of
normal working hours, inmates are instructed to notify staff for appropriate evaluation
and/or referral.
Exh. 1 at 13. The handbook does not require that all cop-outs be responded to in writing. See
Exh. 1; D. 92 at 3.
13.

If an inmate submits a cop-out, there is more than one way for the FMC Devens

staff to respond. If a cop-out is received in the medical or dental box, an inmate may be
scheduled to be seen for examination or treatment in response.

A cop-out may also be

responded to in writing. Or, an inmate may receive a verbal response to a cop-out. A cop-out
that is blank in the bottom portion of the response section is not returned to a prisoner. If a copy

2

To be distinguished from a cop-out, a “call-out” is when an inmate is scheduled for a certain
activity or medical visit. Buculei Testimony, Trial Day 1; see Exh. 1 at 3.
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of a cop-out exists with no response in writing at the bottom, it is the inmate’s copy and it does
not mean that the cop-out was not responded to, as the inmate may have been scheduled for an
appointment or may have received a verbal response. Howard Testimony, Trial Day 3.
14.

If a cop-out is responded to verbally, or if an inmate is scheduled for an

appointment in response to a cop-out, a written response to the cop-out is not customarily given
to an inmate, nor is there a requirement to do so. Howard Testimony, Trial Day 3.
15.

If an inmate does not receive a response to a cop-out, he may initiate a grievance

regarding the lack of a response. An inmate may also make a verbal, non-written complaint to
staff at FMC Devens at mainline. 3 An inmate also has the option of going through his
correctional counselor to obtain a response. Finally, an inmate may report to sick call for a
medical or dental issue. Howard Testimony, Trial Day 3.
16.

While at FMC Devens, Buculei was aware that he had a right to dental care, such

as preventative services, emergency care and routine care. Buculei Testimony, Trial Day 1; Exh.
1 at 12. Buculei also knew that he had a responsibility to maintain his own oral hygiene and
health. Buculei Testimony, Trial Day 2.
17.

At the time that Buculei was admitted to FMC Devens, Buculei had ongoing

dental issues. Britt-Still Testimony, Trial Day 3; Howard Testimony, Trial Day 3.
18.

The government objected to the admission of any evidence at trial regarding

Buculei’s dental treatment at FMC Devens prior to December 15, 2006, given the Court’s ruling
dismissing the portion of Count I that pre-dates this date. Given the government’s objection, the
Court admitted this evidence conditionally and now only recounts and relies upon that portion of

3

Mainline is the term used for the procedure at FMC Devens where staff representative for all
departments are present where the inmates are dining and are available to listen to inmate
complaints or concerns. Howard Testimony, Trial Day 3.
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the pre-December 15, 2006 treatment that gives background and context for Buculei’s later
claims and does not rely on this evidence as giving rise to any separate claims for pain and
suffering.
19.

On July 19, 2004, Buculei had a dental examination by Dr. Van Ells, which

included dental x-rays, and he was evaluated for his complaint of pain on the upper right side of
his mouth. At that time, Buculei could not identify which tooth caused his pain, but dental xrays revealed decay on Tooth #1 (Buculei’s upper right wisdom tooth).

Dr. Van Ells

recommended that Tooth #1 be removed, but Buculei refused to have the tooth extracted. BrittStill Testimony, Trial Day 3; Buculei Testimony, Trial Day 2; Exh. 59 at 1504, 1510. Tooth #1
is the same tooth that Buculei testified he began complaining about in 2006. Buculei Testimony,
Trial Day 2; see, e.g., Exh. 5.
20.

On January 25, 2005, Buculei failed to show for his scheduled dental cleaning.

Buculei Testimony, Trial Day 2. As a result, Buculei was rescheduled for a cleaning on June 1,
2005. However, when Buculei arrived on June 1st, he declined to have the cleaning. Thereafter,
in 2006, Buculei was seen in the clinic for restoration of a broken filling on another tooth and a
dental cleaning was also performed at that time. Britt-Still Testimony, Trial Day 3; Howard
Testimony, Trial Day 3.
21.

On December 1, 2005, Buculei was seen in the dental clinic. The dental staff

recommended the extraction of another tooth, Tooth #13, and again Buculei refused an
extraction. Buculei Testimony, Trial Day 2; Exh. 59 at 1506, 1533.
22.

Buculei testified that he submitted a number of cop-outs in 2006 complaining of

tooth pain. Buculei Testimony, Trial Day 1 and Trial Day 2. However, Buculei testified that he
was aware that if he had an acute or emergency dental need such as pain, swelling or infection,

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he was to follow the sick call procedures set forth in the Admission and Orientation handbook.
Buculei Testimony, Trial Day 2; Exh. 1 at 13. Those procedures required Buculei to fill out a
sick call sign-up sheet for an emergency. Id. Buculei did not submit a sick call sign-up sheet for
his dental pain until April 4, 2007. Id.; Exh. 30. After Buculei submitted a sick call sign-up
sheet, he was seen for a series of dental appointments. Buculei Testimony, Trial Day 2; BrittStill Testimony, Trial Day 3.
23.

Buculei was seen in the dental clinic on January 24, 2006 complaining of a

broken filling in Tooth #18. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial Day 3;
Exh. 59 at 1533. A filling was made, but Buculei was advised that if there was any further
breakage, there would be a possible extraction. Id.
24.

On March 10, 2006, Buculei was again seen at the dental clinic. He had his teeth

cleaned and he was counseled on how to submit a cop-out to request a dental examination.
Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial Day 3; Exh. 59 at 1533.
25.

Through the spring and summer and early fall 2006, Buculei submitted cop-outs

to Dr. Van Ells, the dental officer at FMC Devens, for treatment for tooth pain and attended
dental open houses seeking appointments to address these issues. Buculei Testimony, Trial Day
1; Exhs. 2-5, 6-8, 9, 10-13.

In various of these cop-outs and communications, Buculei

complained of severe pain and his difficulty eating or chewing properly as a result. See, e.g.,
Exh. 5.
2.
26.

Commissary

During the time period in which Buculei alleges that he was unable to eat and

alleges that he was in severe pain due to his dental condition, Buculei’s commissary purchases
included weekly purchases of dietary items with high acid content, high sugar and/or hard foods

10

including but not limited to peanuts, chocolate bars with almonds, bagels, roast beef, mints,
butter pecan ice cream, pretzels, cheese, salted mixed nuts, donut sticks, chicken drumsticks,
soda, cookies and honey. These commissary items purchased and consumed by Buculei can
aggravate pre-existing dental issues (particularly where Dr. Britt-Still testified that the medical
records reflected that Buculei did not have “an entirely healthy mouth” when he arrived at FMC
Devens), potentially induce traumatic conditions to the teeth and surrounding tissues, as well as
contribute to ongoing poor oral health. Buculei Testimony, Trial Day 2; Britt-Still Testimony,
Trial Day 3; Howard Testimony, Trial Day 3; Exh. 60 (Buculei’s commissary records from April
27, 2006 through May 31, 2007).
27.

Buculei claimed that the commissary lacked healthy food options and he was not

aware of the types of foods he should be eating. Buculei Testimony, Trial Day 2. However,
during the time that Buculei was at FMC Devens, the commissary provided healthy food choices
such as cheese, oatmeal and breakfast drinks that were available for his purchase.

The

commissary is also not the only means by which an inmate has access to food since it is designed
to supplement the meals are served each day at FMC Devens. Howard Testimony, Trial Day 3.
Furthermore, upon his admission to FMC Devens, Buculei was referred to a nutritionist and
enrolled in a healthy diet program to instruct him about healthy eating habits and to assist him in
managing his medical issues. Howard Testimony, Trial Day 3; Exh. 59 at 1291, 1333.
28.

Buculei submitted a copout on October 6, 2006 and he was placed on a waiting

list for a dental appointment. Exh. 59 at 1220; Buculei Testimony, Trial Day 2. On October 3,
2006, Buculei was seen by dental staff, namely Dr. Morazan, not the prior dental officer, Dr. Van
Ells, for a cleaning which was not what Buculei had been seeking. Buculei Testimony, Trial
Day 1; Exh. 14 (seeking to address pain in teeth #1 and #27).

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29.

Buculei later submitted another cop-out, on October 6, 2006, in which he noted

that “the Dr. indicated that I have several tooth conditions that I need to have an x-ray asap.”
Buculei Testimony, Trial Day 2; Exh. 59 at 1220. He received a written response indicating that
he was placed on the dental waiting list for an appointment. Buculei Testimony, Trial Day 2;
Exh. 59 at 1220.
30.

In 2006, during the time that Buculei testified that he was unable to sleep due to

the pain from his teeth, Buculei was seen in the FMC Devens sleep disorders clinic and was
diagnosed with very severe sleep apnea with findings of very poor sleep quality. Buculei
Testimony, Trial Day 2; Exh. 59 at 1282-1284. On November 16, 2006, Buculei spoke with the
respiratory specialist at FMC Devens and explained that it was very difficult, if not impossible,
to use the C-pap machine, a breathing device to assist him with his sleep apnea because of his
dental pain. The specialist advised him to contact dental services. Buculei Testimony, Trial Day
1.
31.

He submitted several cop-outs in November 2006 and December 2006

complaining of severe tooth pain in teeth #1 and #27 and seeking a dental appointment. Buculei
Testimony, Trial Day 1; Exhs. 16-21.
32.

During this same period of time, Buculei was purchasing and consuming

commissary items that included cheesecake, pretzels, ice cream, candy bars with nuts, and honey
roasted peanuts. Buculei Testimony, Trial Day 2; Exh. 60 (dated 12/5/06, 12/12/06, 12/19/06).
D.

Findings Relating to Buculei’s Dental Care After December 15, 2006 (Count
I)

33.

On January 15, 2007, Buculei submitted a cop-out stating that he was unable to

eat, sleep or drink because of tooth pain. Buculei Testimony, Trial Day 1 and Trial Day 2; Exh.
22. During this time, Buculei was purchasing and consuming from commissary candy bars,
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honey roasted peanuts, ice cream, bagels, peanut butter cups and pork rinds. Buculei Testimony,
Trial Day 2; Exh. 60 (dates 1/3/07, 1/8/07, 1/16/07).
34.

Either as a result of the January 15th cop-out or another request, on January 23,

2007, Buculei was seen for emergency dental care by Dr. Morazan. Buculei Testimony, Trial
Day 2; Exh. 59 at 1532. At that time, Buculei was complaining of pain in Tooth #1. Tooth #1
was extracted that same day by Dr. Morazan. Buculei Testimony, Trial Day 1; Exh. 59 at 1532,
1539, but the dentist did not deal with tooth #27 about which Buculei had also been complaining
since the dentist indicated that he would deal with one dental problem at a time. Buculei
Testimony, Trial Day 1; Exh. 23.
35.

Later that same day, January 23, 2007, he submitted a cop-out regarding pain in

tooth #27 and requesting an appointment to address that issue. Exh. 23.
36.

In February of 2007, Buculei submitted several cop-outs complaining of tooth

pain in tooth #27. Exh. 24-25. During this same period of time, Buculei was purchasing and
consuming from commissary candy bars with almonds, honey roasted peanuts, bagels, ice cream,
yogurt raisin nut mix, salted mixed nuts, pickles, pretzels and Fruit Loops cereal. Buculei
Testimony, Trial Day 2; Exh. 60 (dates 1/29/07, 2/5/07, 2/12/07, 2/20/07, 2/26/07). By February
26, 2007 as a result of at least one cop-out, Buculei received a call-out and an x-ray of Buculei’s
tooth #27 was also taken that day. Buculei Testimony, Trial Day 1; Exh. 26.
37.

In March 2007, Buculei submitted cop-outs complaining of pain and sensitivity

relating to an abscess that had developed in tooth #27. Exh. 26-28. Buculei had a dental
appointment schedule for March 29, 2007, but the appointment was cancelled. Id.
38.

In or about late March 2007 or early April 2007, Buculei submitted an

administrative complaint about his requests to see the dentist regarding his tooth pain. Exh. 29.

13

He reported, among other things, that he had an extraction in January 2007, but had been waiting
since February 2007 to be treated for other “excruciating toothaches” and that he “cannot eat,
drink or sleep.” Id. The response of the correctional counselor was that Dr. Morazan was out on
medical leave and that all inmates requiring immediate attention need to see a nurse for further
medical assessment. Id.
39.

On April 4, 2007, Buculei submitted a sick call signup sheet regarding his tooth

pain and noting that he could not eat, drink or sleep properly. Exh. 30.
40.

On April 8, 2007, Buculei was seen in a medical sick call by Ms. Spada

complaining of increased pain to his right lower tooth and a possible tooth abscess. Buculei
Testimony, Trial Day 2; Exh. 59 at 1626. After he was evaluated, Buculei was provided with an
intra-muscular injection, oral antibiotics and pain medication. Britt-Still Testimony, Trial Day 3;
Exh. 59 at 1626-1627. Buculei received these medications either that evening or the next day.
Buculei Testimony, Trial Day 1. A consult was also written to dental for follow up for the next
day. Buculei Testimony, Trial Day 1; Britt-Still Testimony, Trial Day 3.
41.

The records reflect that Buculei was seen for a dental examination on April 10,

2007. Britt-Still Testimony, Trial Day 3; Exh. 59 at 1530. X-rays of Buculei’s Tooth #28 and
Tooth #29 were taken and Buculei was put on the waiting list to be seen for a visiting dentist.
Buculei Testimony, Trial Day 1; Britt-Still Testimony, Trial Day 3; Exh. 33; Exh. 59 at 1531.
42.

The following day, April 11, 2007, Buculei went to health services for tooth pain

and was examined by Ms. Spada who also conferred with the doctor. Buculei Testimony, Trial
Day 1 and Trial Day 2; Exh. 59 at 1624. Buculei indicated that the pain and swelling had not
improved. He received an intramuscular shot, antibiotics and an outside oral surgeon was
consulted.

Britt-Still Testimony, Trial Day 3; Exh. 59 at 1624.

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Buculei was sent to the

University of Massachusetts (“UMass”) Emergency Room that day and Dr. Zyurzynski
performed oral surgery and drained a large amount of accumulated puss at and around tooth #27.
Id.; Exh. 35.
43.

In his medical notes, Dr. Zyurzynski instructed Buculei to “[s]ee dentist as soon

as possible. You need dental work that cannot be done at ER extraction/root canal . . . .” Exh.
37.
44.

Upon return to FMC Devens, Buculei was seen by medical staff and he denied

any discomfort. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial Day 3; Exh. 59 at
1622.

Additionally, that same day, the pharmacist at FMC Devens processed Buculei’s

prescriptions from UMass and Buculei received antibiotics. Buculei Testimony, Trial Day 1;
Britt-Still Testimony, Trial Day 3; Exh. 59 at 1625.
45.

On April 13, 2007, Dr. Beam prescribed an antibiotic and Tylenol III for Buculei,

pursuant to the UMass consult the previous day. The pharmacist processed those orders later
that day. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial Day 3; Exh. 59 at 1622.
46.

On April 13, 2007, medical staff officer Dr. Bernhard, Buculei’s primary care

physician, saw Buculei in health services for a chronic care visit. Dr. Bernhard was informed of
Buculei’s prior emergency room visit and abscess drainage at UMass and he advised that Buculei
to followup with the dental staff. Buculei Testimony, Trial Day 1 and Trial Day 2; Britt-Still
Testimony, Trial Day 3; Exh. 59 at 1621.
47.

On April 20, 2007, Buculei was seen in health services by Ms. Spada. At that

time, Buculei’s abscess was improving and resolving. Buculei Testimony, Trial Day 2; BrittStill Testimony, Trial Day 3; Howard Testimony, Trial Day 3; Exh. 59 at 1619.

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48.

On May 21, 2007, FMC Devens issued a response to Buculei’s earlier request for

administrative remedy, seeking to be seen by a dentist as soon as possible. Exh. 40. The
response recited the medical care given on April 11, 2007 and Buculei’s allegations about
toothaches since the summer 2006. Id.

The response granted the request for administrative

remedy and noted that he had been placed on the call-out list to see a dentist on May 21, 2007.
Id.
49.

Buculei was seen on May 21, 2007 by Dr. Gelfand for dental care. Buculei

Testimony, Trial Day 1 and Trial Day 2; Britt-Still Testimony, Trial Day 3; Exh. 59 at 1529. At
that time, Buculei’s chief complaint was a broken filling in Tooth #27. Id. An extraction of
Tooth #27 was performed that day. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial
Day 3; Exh. 59 at 1529, 1537.
50.

On May 25, 2007, Buculei was seen by Dr. Gelfand at a dental open house for a

complaint of post operative pain. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial
Day 3; Exh. 59 at 1528. Dr. Gelfand looked at the extraction site of Tooth #27, noted swelling in
the area, recommended warm water salt rinses and also provided Buculei with a prescription for
antibiotics. The pharmacist reviewed and processed the orders that day, Buculei Testimony,
Trial Day 2; Britt-Still Testimony, Trial Day 3; Exh. 59 at 1528, and Buculei received them a
few days later. Buculei Testimony, Trial Day 1. Swelling and pain at a post-operative site is
normal. Britt-Still Testimony, Trial Day 3.
51.

When Buculei was seen in the chronic care clinic on June 25, 2007, he stated that

he had no complaints at that time. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial
Day 3; Howard Testimony, Trial Day 3; Exh. 59 at 1615.

16

52.

On July 12, 2007, Buculei was seen in the dental clinic by Dr. Gelfand for an

emergency dental examination. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial
Day 3; Exh. 59 at 1527. At that time, Buculei indicated that a prior filling fell out on Tooth #16
(upper left wisdom tooth). That same day, decay was removed from the tooth and a filling was
placed. Britt-Still Testimony, Trial Day 3.
E.

Findings Related to Buculei’s Dental Care Between June 2009 and August
20094 (Count II)

53.

Buculei submitted a June 30, 2009 cop-out complaining of tooth pain in Tooth

#18, Tooth #20, Tooth #21. This complaint involved pain in teeth that was different from
previous complaints in 2006 and 2007. Buculei Testimony, Trial Day 2; Britt-Still Testimony,
Trial Day 3. Buculei received a written response to the cop-out indicating that he was placed on
the waiting list for a dental appointment. Buculei Testimony, Trial Day 2; Britt-Still Testimony,
Trial Day 3; Exh. 42; Exh. 59 at 1705. At the time he submitted his cop-out, Buculei indicated
that he had been in pain for three days. Exh. 42.
54.

On June 26, 2009, Buculei was scheduled for a follow-up visit in health services.

Buculei failed to show for his appointment. Britt-Still Testimony, Trial Day 3; Exh. 59 at 1800.
55.

Buculei submitted a June 30, 2009 inmate sick call sign up sheet to which the

staff responded that he had a scheduled dental appointment and should watch out for the call-out
list for this appointment. Exh. 43.
56.

On July 2, 2009, Buculei was seen in health services for a complaint of tooth pain.

Buculei told the nurse that he was taking Motrin with no relief. The Medical Duty Office
(“MDO”) was notified and Buculei was prescribed Percocet for three days, with an instruction to

4

At trial, the parties stipulated that Buculei’s claim under Count II ended at the end of August
2009. Trial Day 2; D. 92 at n. 3; Exh. 51.
17

follow up with medical staff on July 6, 2009. Buculei Testimony, Trial Day 2; Britt-Still
Testimony, Trial Day 3; Exh. 59 at 1799.
57.

On July 3, 2009, Buculei was seen at sick call in health services for a complaint of

lower jaw pain. Buculei was instructed to follow up with another sick call if necessary. Buculei
Testimony, Trial Day 2; Britt-Still Testimony, Trial Day 3; Exh. 59 at 1798.
58.

On July 4, 2009, Buculei was seen in health services complaining of increasing

pain in his lower left molar and throat. Buculei indicated that the pain began one to two weeks
prior, and that hot food and sweet food made the pain worse. However, Buculei indicated that
Percocet was providing him with relief. An antibiotic was prescribed and Buculei was instructed
to follow up with a sick call if needed. Buculei Testimony, Trial Day 2; Britt-Still Testimony,
Trial Day 3; Exh. 59 at 1796.
59.

During the time that Buculei was complaining that sweet food and hot food made

his pain worse, Buculei was purchasing and consuming commissary coffee, candy bars with
almonds, honey wheat pretzels, crispy candy bars, mixed nuts, nacho chips and butter pecan ice
cream. Exh. 60 (dates 7/1/09, 7/8/09).
60.

On July 6, 2009, Buculei was seen for a sick call in the dental clinic for pain in

Tooth #18 as a result of his earlier cop-out. Buculei Testimony, Trial Day 1. An x-ray was
taken, which Dr. Beam reviewed. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial
Day 3; Exh. 59 at 1659.
61.

On July 6, 2009, Buculei was also seen for a sick call in health services for a

complaint of pain in Tooth #18. Buculei said his pain had decreased since taking an antibiotic
and he requested a renewal of pain medicine. Another prescription of Percocet was ordered. At
the time of this sick call, Buculei indicated his pain was 3 out of 10 and the pain had decreased

18

since taking the antibiotics. Staff noted “[s]ignificant improvement with dental pain thus far”
and “continue to follow” in Buculei’s medical records. Buculei Testimony, Trial Day 2; BrittStill Testimony, Trial Day 3; Exh. 59 at 1794-1796.
62.

Buculei submitted a cop-out and a sick call signup sheet on July 21, 2009

complaining that he had not yet seen a dentist, had run out of pain medication and antibiotics and
that, as of July 17, 2009, “the pain is back in said area in said tooth and intensifying day by day.”
Exhs. 44-45.
63.

As a result, on July 23, 2009, Buculei was seen in health services for followup

and a complaint of increased pain in his lower left molar. X-rays were taken and they showed no
signs of an abscess. Buculei was scheduled to be seen by a dentist within a week. Buculei’s
pain medication (Percocet) was also renewed.

Buculei Testimony, Trial Day 2; Britt-Still

Testimony, Trial Day 3; Exh. 59 at 1792.
64.

On July 25, 2009, Buculei was seen in health services for followup for his tooth

pain and for a review of medications, which were due to soon expire. At that time, Buculei said
his tooth pain had “recently increased.” Buculei was informed that he was on the list to be seen
by a dentist during the upcoming week. Buculei Testimony, Trial Day 2; Britt-Still Testimony,
Trial Day 3; Exh. 59 at 1790.
65.

That same day, Buculei, through correctional staff, approached medical staff,

complaining of tooth pain and seeking pain medication and antibiotics. Buculei did not recall
being seen by any medical staff that night, Buculei Testimony, Trial Day 2, but Buculei was
given the option of being seen two days later, but Buculei declined, stating that he had already
been seen on July 23, 2009. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial Day 3;
Exh. 59 at 1789.

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66.

The next day, July 26, 2009, Buculei was seen in the health services clinic.

Buculei was informed that he would be seen by a dentist that week. Although Buculei testified
that he did not receive any medications, he was prescribed Amoxicillin and Metronidazole
(antibiotics) for seven days. Although Buculei testified that he was in pain, Buculei did not seek
a renewal of his pain medication (Percocet) at this visit. Buculei Testimony, Trial Day 2; BrittStill Testimony, Trial Day 3; Exh. 59 at 1787-1788.
67.

On July 28, 2009, Buculei was seen by a visiting dentist, who prescribed a rinsing

(saline) solution for Buculei. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial Day 3;
Exh. 48, but Buculei was still requesting to be seen regarding a severe abscess. Exh. 48; see Exh.
57, 58.
68.

On August 3, 2009, Buculei submitted an administrative complaint explaining

that he had been experiencing acute pain since June 27, 2009 in teeth #18, 20 and 21 and
requesting “to see a dentist as soon as possible, I have been living with excruciating pain for a
month.” Exh. 47. The correctional counselor’s response was that he would be scheduled to see
the Chief Dental Officer on or about August 10, 2009. Exh. 47; Exh. 59 at 1711; Buculei
Testimony, Trial Day 1.
69.

On August 6, 2009, Buculei submitted another cop-out and also another sick call

signup sheet regarding tooth pain relating to the abscess at tooth #18. Exh. 48.
70.

The same day, August 6, 2009, Buculei was seen for a sick call visit by Dr. Britt-

Still for a complaint of a toothache (tooth #18). Buculei was out of medication at that time. Dr.
Britt-Still wrote another prescription for Amoxicillin and Buculei was informed that he would be
placed on a future call-out for an appointment. Buculei Testimony, Trial Day 2; Britt-Still
Testimony, Trial Day 3; Exh. 59 at 1660.

20

71.

The next day, August 7, 2009, Dr. Britt-Still saw Buculei for a sick call in the

dental clinic for a complaint regarding his abscess and a concern that the medications he was
prescribed were not working relative to Tooth #18. At that time, Buculei’s medications were
changed and the dentist discussed the possibility of either removal of the tooth or nerve treatment
with him. Buculei was placed on the list for a future call-out. Buculei Testimony, Trial Day 2;
Britt-Still Testimony, Trial Day 3; Exh. 50; Exh. 59 at 1662.
72.

When Buculei was seen by Dr. Britt-Still on August 16, 2009, he continued to

refuse an extraction of Tooth #18. Due to Buculei’s resistance to an extraction, Dr. Britt-Still
performed a pulpectomy. Dr. Britt Still informed Buculei that the canals in this tooth were tiny,
that she was not able to negotiate the canals and that a root canal would not likely be successful
if attempted. Dr. Britt Still prescribed an antibiotic and a pain medication (Naproxen) for ten
days as an alternative to Ibuprofen. Buculei Testimony, Trial Day 2; Britt-Still Testimony, Trial
Day 3; Exh. 59 at 1654, 1664, 1665, 1713.
IV.

CONCLUSIONS OF LAW
In light of the evidence presented to the Court, the Court makes the following

conclusions of law:
A.

The Federal Tort Claims Act and Buculei’s Claims

1.

In the complaint, Buculei alleged that FMC Devens failed to provide him with

timely, adequate and proper dental care that resulted in pain and suffering. D. 21
2.

In his opposition to the government’s motion for judgment of a matter of law,

Buculei reiterated that the claims in the complaint are “not dental malpractice but rather that
although he followed the procedures the government set for him to receive treatment for his

21

dental problems the defendant repeatedly failed to provide him access to dental health care.” D.
89 at 1.
3.

Pursuant to the Federal Tort Claims Act, “the United States [may be liable for] …

injury or loss of property, or personal injury or death caused by the negligent or wrongful act or
omission of any employee … while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.”

28 U.S.C. §

1346(b)(1).
4.

To prevail on his claims under the law of Massachusetts, as both parties

acknowledge, D. 89 at 12, Buculei must prove that there was (1) a legal duty owed by the
Defendant to Buculei; (2) a breach of that duty; (3) proximate or legal cause; and (4) actual
damage or injury. Frappier v. Countrywide Home Loans, Inc., 645 F.3d 51, 58 (1st Cir. 2011);
Heinrich v. Sweet, 308 F.3d 48, 62-63 (1st Cir. 2002).
B.

Buculei Failed to Meet His Burden to Show Breach of Duty Or Causation

5.

The record demonstrates that Buculei received adequate dental care and was

prescribed adequate pain medications and antibiotics for his chronic and acute dental conditions.
Buculei was seen by dental and medical professionals during the relevant portion of his time at
FMC Devens and he was treated not only for repeated dental matters, but also for various
medical issues as well. Buculei did not exhibit, nor has he alleged, any of the symptoms or
complications that would be associated with a life threatening dental condition.
6.

Buculei disputes the Defendant’s characterization of the timing and type of care

that he received. Buculei, however, cannot deny that he did, in fact, receive treatment for his
dental conditions. Buculei cannot state a claim for negligence simply because he was not able to

22

direct the type or level of treatment that he received while he was incarcerated. See Jackson v.
Fair, 846 F.2d 811, 817 (1st Cir. 1988) (applying the same principle in the constitutional context
where a prisoner had alleged that the DOC had violated the 8th Amendment by transferring him
for a psychiatric hospital to a correctional institution).
7.

Buculei’s complaints regarding the care that he received and the timing of that

care fails because the record, as a whole, does not demonstrate that Buculei’s dental care “‘did
not conform to good dental practice’ and that damage resulted therefrom.” Kilburn v. Dept. of
Correction, 72 Mass. App. Ct. 1105, 2008 WL 2566382, at *3 (2008) (unpublished decision)
(affirming dismissal of negligence claims of a DOC inmate against a prison dentist) (citing
Anderson v. Attar, 65 Mass. App. Ct. 910, 911 (2006)).
8.

“[The Bureau of Prisons] is by no means required to tailor a perfect plan for every

inmate; while it is constitutionally obligated to provide medical services to inmates, Estelle v.
Gamble, 429 U.S. 97, 103-05 (1976), these services need only be on ‘a level reasonably
commensurate with modern medical science and of a quality acceptable within prudent
professional standards.’ United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987).” United
States v. Derbes, 369 F.3d 579, 583 (1st Cir. 2004).
9.

Buculei also did not offer an expert to opine that the dental care he received fell

below the minimum standard of care. Primus v. Galgano, 329 F.3d 236, 241 (1st Cir. 2003)
(requiring plaintiffs to present expert testimony as to standard of care and its breach in medical
malpractice action “unless the breach is sufficiently obvious as to lie within the common
knowledge of the jury”) (citing Heinrich, 308 F.3d at 63); see Swan v. United States, 698 F.
Supp. 2d 227, 231 (D. Mass. 2010). Although Buculei has argued that no such expert opinion
was necessary to prevail upon his negligence claims where the alleged lack of responsiveness to

23

Buculei’s complaints of pain showed lack of reasonable care, the absence of same at trial in this
case contributed to his failure to prove that any delay in responding to cop-outs caused or
aggravated his dental issues, particularly when there was evidence in the record that he refused
certain dental advice (regarding extractions and cleanings at certain points) and there was expert
testimony from the defense that his contemporaneous consumption of certain foods could have
contributed to his tooth pain, discomfort and aggravated resolution of dental issues (even where,
as to certain of the commissary purchases, like the nuts, Buculei claimed that he ground them
into a paste to eat). Therefore, the absence of such expert opinion here contributed to Buculei’s
failure to show a breach of the duty of care by the Defendant, but also causation.
10.

Failing to show causation is particularly evident here, where, as the record above

reflects, Buculei did in fact receive dental care at FMC Devens and was seen and treated by
dental staff, medical staff, nursing staff and physician assistants about these issues and he was
prescribed pain medications and antibiotics to treat his dental condition.
11.

In addition to the medical and dental care that Buculei received, during the time

period in which Buculei alleges that he was unable to eat and was in severe pain due to his dental
situation, Buculei’s commissary purchases reveal that Buculei made weekly purchases of dietary
items consistent with high acid content, high sugar and/or hard foods. These commissary items
purchased by Buculei could aggravate pre-existing dental issues, potentially induce traumatic
conditions to the teeth and surrounding tissues, as well as contribute to ongoing poor oral health.
It is not “blam[ing] the victim,” as Buculei suggests, D. 92 at 3, to rely, in part on the course of
Buculei’s commissary purchases in determining whether the Defendant’s alleged negligence
caused Buculei’s pain and suffering here. Moreover, such purchases go to the credibility of
Buculei’s complaints of pain in certain instances when he persisted in making such purchases

24

when other food options were available and where the defense witnesses testified that such
continuing dental issues could have contributed to or been aggravated by such dietary choices.
12.

Moreover, Buculei’s allegations about the alleged lack of responsiveness to his

requests (mostly in the form of cop-outs) do not save Buculei’s claims. The lack of a written
response to a cop-out does not indicate lack of care by FMC Devens. There is no institutional
requirement that such request be responded to in writing, see Exh. 1, and, therefore, the failure of
the staff to do so in a number of instances does not reflect a violation of its own policies. Cf.
Sullivan v. Commissioner of Correction, 69 Mass. App. Ct. 1115, 2007 WL 2296547, at *6
(2007) (vacating trial court’s entry of summary judgment for Commissioner where, inter alia,
DOC protocols provided for yearly teeth cleanings, but the record showed that the inmate had
not received a dental cleaning between 1997 and 2005).
13.

Dr. Howard, the Clinical Director at FMC Devens during Buculei’s time there,

testified that such requests could be responded to in various ways and not just in writing.
Accordingly, it is appropriate to read the history of such cop-outs during the time period alleged
in (the remainder of) Count I and Count II in light of Buculei’s dental treatment at FMC Devens.
This record reflects that Buculei did receive dental treatment, treatment with pain medication and
antibiotics, oral procedures and/or surgery provided at the facility (or facilitated at an off-site
facility, i.e., emergency room). As one example of the lack of responsiveness (or delay in
responsiveness) by FMC Devens, Buculei points to the recommendation of the UMass oral
surgeon who advised that he should see a dentist as soon as possible after his April 11, 2007
surgery for abscess and that he did not see a dentist at FMC Devens until May 21, 2007. This
timeline, however, ignores the intervening medical treatment that Buculei received as soon as he
returned to FMC Devens from the hospital and Dr. Howard’s testimony about the need for

25

medical issues like the abscess to be resolved before such additional dental treatment was
advisable. In light of this evidence (and in the absence of medical opinion to the contrary), the
Court cannot conclude that the facility’s handling of Buculei’s cop-outs, in light of his actual
medical and dental care, constituted a breach of the duty of reasonable care.
V.

CONCLUSION
After consideration of the evidence presented at trial and in light of the aforementioned

findings of fact and conclusions of law, this Court finds that judgment will enter in favor of the
Defendant. In light of this ruling, the Court DENIES the Defendant’s motion for judgment as a
matter of law, D. 88, as moot.
So ordered.
/s/ Denise J. Casper
United States District Judge

26