Wallace v. Winner et al

Filing 51

ORDER ADOPTING 36 FINDINGS AND RECOMMENDATIONS in full; granting in part and denying in part 25 Motion for Summary Judgment. Signed by Judge Brian Morris on 1/23/2020. Transmitted electronically to prison for delivery to Plaintiff. (TAG) Modified on 1/23/2020 to correct signing judge (TAG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
DALE E. WALLACE,
Plaintiff,

CV 17-103-BMM-JTJ

vs.
CONNIE WINNER, PAUL REES,
DANIEL HASH, TRISTAN KOHUT,
and CINDY HINER,

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

Defendants.

INTRODUCTION
Dale Wallace (“Wallace”) filed a Complaint alleging Defendants were
deliberately indifferent to his serious medical needs when they delayed surgery for
his broken jaw for approximately two years. (Doc. 2.) Defendants Dr. Daniel Hash,
DDS, Dr. Hash’s supervisor Cindy Hiner and her supervisor Connie Winner, and
Drs. Tristan Kohut and Paul Rees moved for summary judgment. (Doc. 25.)
United States Magistrate Judge John Johnston issued Findings and
Recommendations. (Doc. 36.) Judge Johnston recommends that the Court grant
summary judgment as to Defendants Winner, Hiner, Kohut, and Rees. (Doc. 36 at
53.) Judge Johnston recommends that the Court deny summary judgment as to
Defendant Dr. Hash regarding Dr. Hash’s treatment of Wallace between November
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2014 and June 2016. (Doc. 36 at 53.) Dr. Hash filed objections to Judge Johnston’s
Findings and Recommendations. (Doc. 41.) Wallace filed separate objections to
Judge Johnston’s Findings and Recommendations. (Doc. 42.) Defendants Winner
and Hiner filed a response to Wallace’s objections. (Doc. 50.)
BACKGROUND
A police vehicle struck Wallace during his arrest in Oregon on January 3,
2014. (Doc. 2 at 3, ¶ 12.) Wallace fractured his right arm, left leg, jaw, and
shattered numerous teeth. (Id.) Doctors at the Oregon Health and Science
University performed surgery on Wallace’s mandible and inserted a steel plate in
January 2014. (Defendants’ Statement of Undisputed Facts, Doc. 26 (hereinafter
“SUF”) at ¶ 4.) Law enforcement subsequently transferred Wallace to Montana
State Prison (MSP), where he has been incarcerated since October 7, 2014. (SUF at
¶ 2.) Wallace explained his dental problems to MSP medical staff when he arrived
in October 2014. (Id. at ¶ 3.)
I.

October 2014 to June 2015
Wallace sent a Health Care Request form (hereinafter referred to as a “kite”)

to the dental department on October 9, 2014, explaining his jaw issues and
requesting that the dentist remove some of his teeth if possible. (SUF at ¶ 5; Doc.

2

26-1 at 56.) Dental staff responded to Wallace the next day, noting that Wallace
was already scheduled for a dental intake exam. (SUF at ¶ 5.)
A physician’s assistant (PA) examined Wallace on October 9, 2014. Wallace
reported jaw pain. The PA noted that Wallace had a deformity in his jaw, ordered
acetaminophen for pain, and requested Wallace have an appointment for a pain
management plan. (SUF at ¶ 6.) Wallace sent additional kites to the medical
department and the dental department on October 11, 2014, and October 27, 2014,
complaining about pain in his jaw and teeth. (SUF at ¶¶ 8, 10; Doc. 26-1 at 55;
Doc. 26-3 at 17.) MSP staff responded to Wallace’s kites. (Id.) Wallace sent a kite
to the dental department on November 13, 2014, reporting that a chunk of his tooth
broke away. (SUF at ¶ 13.) Medical staff evaluated Wallace the next day, noted
that Wallace needed a referral to a dental provider, and gave Wallace pain
relievers. (Id.) Wallace filled out a medical history on November 18, 2014, in
which he noted his jaw injuries and pain. (Id. at ¶ 14.)
Wallace had an initial dental appointment on November 19, 2014. (SUF at
¶ 15.) The provider noted that Wallace’s mandible was fractured. Dr. Hash
recommended that dental see Wallace again in 1-3 weeks. (Id.) Wallace’s initial
treatment plan included restoring his broken and decayed teeth and developing a
periodontal treatment plan. (Id. at ¶ 17.)
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Wallace sent a kite complaining about ear pain “where [his] upper right jaw
was broken & pushed up into [his] ear drum” on December 13, 2014. (Doc. 26-1 at
50.) Medical assessed Wallace the next day, December 14, 2014, and noted, “Will
Dental take a Look??” (Id. at 51.) Wallace sent kites to dental on January 8, 2015,
and January 13, 2015, complaining of mouth, jaw, and tooth pain. (Id. at 48-49.)
Dr. Brent Goldthorpe saw Wallace for a sharp pain under Wallace’s gums on
January 15, 2015. (SUF at ¶ 19.) Wallace declined exploratory surgery. (Id.)
Wallace sent three additional kites to dental in the spring of 2015. (Doc. 26-1 at
42-43, 47.) Wallace had numerous dental appointments between February 2015
and May 2015. (SUF at ¶ 19.)
II.

June 2015 to June 2016
Wallace sent a kite to dental on June 9, 2015, complaining of ear and upper

jaw pain. (SUF at ¶ 20; Doc. 26-1 at 40.) Dr. Greg Christensen evaluated Wallace
on June 16, 2015. (SUF at ¶ 22.) Dr. Christensen noted crepitus in Wallace’s right
temporomandibular joint (TMJ) from the January 2014 injury. Dr. Christensen
indicated that he wanted Dr. Paul Sims, an oral surgeon, to consult on Wallace’s
crepitus and TMJ. (Id. at ¶ 23.)
Dr. Sims evaluated Wallace on July 10, 2015. (SUF at ¶ 24.) Dr. Sims noted
that Wallace had bilateral TMJ “condyle fractures that were not treated with closed
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reduction.” (Id.) Dr. Sims determined that Wallace needed a referral to Dr. Clark
Taylor, an oral surgeon in Missoula who specializes in complex TMJ surgeries.
(Id. at ¶ 26.) An “MSP Referral Form” indicates that Dr. Hash authorized the
referral on July 10, 2015. (Doc. 26-3 at 30.) An “MT DOC Dental Services
Request” form indicates that Dr. Hash approved the referral on July 27, 2015.
(Doc. 26-1 at 67.)
Wallace sent a kite to dental on September 23, 2015, stating that Dr. Taylor
had not yet evaluated him. (SUF at ¶ 30; Doc. 26-1 at 39.) Wallace stated, “My jaw
& ear have been bugging me & hurting quite a lot lately. Is this normal or can
anything be done?” (SUF at ¶ 30.) Dental responded the next day and informed
Wallace that they had confirmed his appointment with Dr. Taylor. (Id.) Dr. Taylor
saw Wallace in Missoula on October 15, 2015. (SUF at ¶ 32.) Dr. Taylor
recommended a TMJ MRI scan. (SUF at ¶ 33.) Dr. Taylor stated that if the scan
confirmed his clinical impression, Wallace would be a candidate for TMJ surgery.
(Id.) Dr. Taylor’s evaluation notes concluded, “[w]e will be awaiting receipt of
MRI scan.” (Id.) Dr. Taylor’s office sent the evaluation notes to MSP on October
21, 2015. (SUF at ¶ 34.)
Wallace sent a kite to dental on November 3, 2015, asking for an
appointment to talk about Dr. Taylor’s report. (SUF at ¶ 35.) Dr. Starr met with
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Wallace on November 10, 2015, to discuss Dr. Taylor’s report. (Id. at ¶ 36.) Dr.
Starr submitted two Dental Services Request forms that day. (Id. at ¶ 37.) The first
form requested an MRI on Wallace’s TMJ joint. (Id. at ¶ 38.) Dr. Hash testified
that the request for an MRI was approved on the same day. (Id. at ¶ 39.) The
second form requested TMJ surgery, contingent on the MRI results. (Id. at ¶ 40.)
Wallace had two more dental appointments in 2015. (Id. at ¶ 41.)
Wallace sent a kite to dental on December 27, 2015, recounting his jaw
issues, stating that his jaw had begun to hurt more over the past month, and asking
about whether his appointment with Dr. Taylor was scheduled. (Doc. 26-1 at 36;
SUF at ¶ 43.) Dental responded on December 29, 2015, stating that the request for
an appointment with Dr. Taylor had been submitted and was “waiting for
Director’s approval.” (SUF at ¶ 43.) Wallace sent another kite to dental on January
6, 2016, stating that he was having pain and limited movement in his jaw and
requesting information. (Doc. 26-1 at 35; SUF at ¶ 46.)
Dr. Taylor’s office staff had emailed Dr. Hash on December 10, 2015, to
follow up on Wallace’s case and ask if Wallace’s MRI had been scheduled or
completed. (Doc. 26-2 at 1.) Dr. Taylor’s office staff emailed Dr. Hash again on
January 6, 2016, to check on the status of Wallace’s MRI. (Doc. 26-2 at 2.) On
January 11, 2016, Dr. Hash forwarded the December 10, 2015, email to himself as
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a reminder to respond. (SUF at ¶ 42.) Dr. Hash responded on January 13, 2016,
explaining that the scheduling team had not yet scheduled the MRI, but that they
would soon. (Doc. 26-2 at 2; SUF at ¶ 45.)
Dental responded to Wallace’s January 6, 2016 kite on January 14, 2016,
stating, “[w]e have you scheduled for an MRI getting appointments can take time.
Thank you.” (SUF at ¶ 46.) Wallace sent a kite to dental on February 3, 2016,
asking what number he was on the list to get partial dentures. (Doc. 26-1 at 34.)
Wallace had an MRI in Butte on February 9, 2016. (SUF at ¶ 47.) The MRI report
stated that Wallace had “[s]evere degenerative change of the right mandibular
condyle and remodeling of the temporal eminence with limited range of motion but
not meniscal trapping with jaw opening. Mild osteoarthritis of the left mandibular
condyle.” (Id. at ¶ 48.) MSP received the MRI report on February 16, 2016, and
immediately sent the report to Dr. Taylor’s office. (Id. at ¶ 49.)
Wallace sent a kite to dental on February 29, 2016, complaining about jaw
pain and asking about the “next step.” (Doc. 26-1 at 33; SUF at ¶ 50.) Dental
responded on March 2, 2016, “I’m talking with Dr. Taylor and the dentist. Will
schedule you soon to bring you up and discuss what’s going on.” (SUF at ¶ 50.) A
note in Wallace’s chart, dated March 2, 2016, stated, “[s]ent Dr. [Taylor’s] office
an email following up on diagnostic after MRI scan.” (SUF at ¶ 51.)
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Wallace sent a kite to dental on March 20, 2016, reporting that his teeth
were getting more painful and sensitive, that chewing food was difficult, and that
hot and cold bothered. (Doc. 26-1 at 32; SUF at ¶ 52.) Wallace asked, “[i]s there
anything that can be done?” (SUF at ¶ 52.) Dental staff responded on March 22,
2016, stating that they were talking with Dr. Taylor about Wallace’s jaw, that
Wallace was scheduled for fillings, and that his name was nearing the top of the
denture list. (Id.) Dr. Starr saw Wallace on March 29, 2016, and May 10, 2016, for
routine restorative dental treatment. (Id. at ¶ 54.)
Wallace sent a kite to dental on May 27, 2016, asking if there was any new
information about his jaw surgery. (Doc. 26-1 at 30; SUF at ¶ 55.) Wallace
reported that his jaw was hurting more and more over time. Dental responded on
May 31, 2016, stating that they would investigate and then bring Wallace in to
finish his dental work and discuss what they discovered. (SUF at ¶ 55.)
III.

June 2016 to January 2017

Kelly Bigelow from Dr. Taylor’s office emailed Dr. Starr on June 1, 2016,
about a billing problem with the anesthesiologist fee for Wallace’s surgery, stating
it “would be an additional $1500 fee.” (SUF at ¶ 56.) Bigelow asked whether the
State would cover that cost. (Id.) Dr. Christensen noted the following item in

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Wallace’s chart on June 2, 2016: “Emails sent to Dr. Hash/Crystal regarding
follow up [at Dr. Taylor’s office]. Follow up on emails sent.” (Id. at ¶ 57.)
Connie Winner is the Administrator of the Clinical Services Division of the
Montana Department of Corrections. (SUF at ¶ 50.) Dr. Starr forwarded Bigelow’s
June 1, 2016, inquiry to Winner on June 6, 2016. (Id. at ¶ 58.) Dr. Starr asked
Winner how to respond to Bigelow, noting that Wallace was “the inmate Dr.
Taylor was in mid treatment on when the Medicaid switch happened.” (Id.)
Dr. Starr’s mention of the “Medicaid switch” was a reference to the HELP
Act, which went into effect on January 1, 2016. (Id. at ¶ 63.) The HELP Act
brought inmates under the Medicaid umbrella and required DOC to reimburse
health care providers for services billed at the Medicaid rate. Outside health
providers therefore needed to be Medical providers, or accept payment under the
Medicaid fee schedule, to work with DOC. (Id.)
Winner sent Dr. Starr’s inquiry to her supervisor Cindy Hiner, and asked
Hiner how to resolve the issue. Hiner spoke with Dr. Taylor’s office and responded
back to Winner:
Here is the issue: the anesthesiologist this office utilizes is from Denver
and is not covered under Medicaid in Montana. Dr. [Taylor’s] office is
requesting the Department of Corrections approve to pay for the
anesthesiologist that is not covered through Medicaid. Please review
and advise how you would like to proceed.
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(SUF at ¶ 61.) Winner responded, including Dr. Hash on the email, and asked
Hiner if there was an anesthesiologist in Montana who took Medicaid. (Id. at
¶¶ 64-65.) Hiner responded that Dr. Taylor’s office told her they only used this one
anesthesiologist at their practice. (Id.)
Wallace sent a kite on June 7, 2016, about the “constant pain and discomfort
[he was] constantly in due to . . . [his] still broken jaw.” The Director of Nursing
responded on June 10, 2016, telling Wallace that she would make sure his jaw
issues were addressed. (SUF at ¶ 66.) Dr. Tristan Kohut saw Wallace in the MSP
Infirmary on June 29, 2016. (Id. at ¶ 68.) Dr. Kohut prescribed Wallace pain
medication and noted the following: “Jaw complaints. Oral surgery? Need? Will
discuss . . . .” (Id.; Doc. 26-3 at 16.) Wallace sent another kite on July 11, 2016,
complaining about his jaw discomfort. Dental responded the next day and told
Wallace that they were still talking to Dr. Taylor’s office. (SUF at ¶ 69.)
Hiner emailed Dr. Hash and Winner on July 13, 2016, asking if the
anesthesiologist issue had been resolved. (SUF at ¶ 70.) Dr. Hash responded that
he had called Dr. Taylor’s office, but they had not called back yet. (Id.) Dr.
Taylor’s office responded that same afternoon, indicating that they were not sure if
they could accept Wallace because of the Medicaid payment restrictions. Based on
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that information, Dr. Hash asked the dental clinic to put Wallace on his follow-up
list for the coming Monday when he would be at MSP. (Id. at ¶ 71.)
Winner emailed Dr. Hash and Hiner, among others, on July 14, 2016,
recommending that they investigate whether another oral surgeon and/or
anesthesiologist could perform the work at the Medicaid rate. (SUF at ¶ 76.) She
noted that they should exhaust all options before agreeing to a non-Medicaid rate.
(Id.) Dr. Hash responded that he would look into it. (Id. at ¶ 78.)
Winner and Dr. Hash emailed back and forth between July 19, 2016, and
July 21, 2016, discussing Wallace’s case and whether other anesthesiologists in
Montana would accept the Medicaid rate. (SUF at ¶¶ 79-80.) Dr. Taylor’s office
sent Dr. Hash an estimate of charges for Wallace’s treatment on July 20, 2016. (Id.
at ¶ 81.) Dr. Hash, Winner, Hiner, and others met and discussed Wallace’s case on
July 25, 2016. (Id. at ¶ 82.) Winner emailed Dr. Hash on July 26, 2016, explaining
that DOC had to pay health care providers at the Medicaid rate and needed to
exhaust all possibilities before paying at a higher rate. (Id. at ¶ 85.) Dr. Hash
emailed Dr. Taylor’s office on July 26, 2019, asking if Dr. Taylor could perform
Wallace’s surgery at a hospital instead of Dr. Taylor’s surgery center. (Doc. 26-2
at 24; SUF at ¶ 86.)

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Dr. Kohut saw Wallace on July 29, 2016, for a follow-up appointment
regarding pain management. (SUF at ¶ 87.) Dr. Kohut referred Wallace to dental
and asked dental to review Wallace’s jaw MRI. Dental received Dr. Kohut’s
referral on August 1, 2016, and notified Dr. Hash. (Id.) Dr. Hash, Winner, Hiner,
and others continued to discuss Wallace’s case with one another and with Dr.
Taylor’s office throughout August 2016. (Id. at ¶¶ 93-94.)
Wallace sent a kite to dental on August 27, 2016, complaining of the
constant pain in his jaw and asking what was being done. (Doc. 26-1 at 27; SUF at
¶ 96.) Dental staff responded that Wallace was scheduled for an appointment to
discuss what was going on. (SUF at ¶ 96.) Wallace sent another kite to dental on
September 13, 2016, recounting his jaw pain and expressing concern that MSP was
not addressing his situation. (Doc. 26-3 at 37; SUF at ¶ 98.) MSP staff responded
on September 16, 2016, that they were addressing Wallace’s situation and that they
would see him to discuss the pain. (SUF at ¶ 98.)
Wallace sent another kite, which medical received on September 15, 2016,
complaining of jaw pain and expressing concern about his treatment at MSP. (Doc.
26-3 at 36; SUF at ¶ 99.) Wallace stated that MSP was intentionally neglecting
him—Wallace emphasized that he needed corrective surgery and was in constant
pain. (Doc. 26-3 at 36.) Wallace asked, “What is going on? Why are you
12

intentionally making me suffer?” Wallace concluded, “I am in pain & suffering.
Please help.” (Id.) MSP staff responded that that they were addressing Wallace’s
jaw issue and that they would see Wallace to discuss the pain. (SUF at ¶ 99.)
Dr. Hash contacted Dr. Taylor directly on September 19, 2016. (SUF at
¶ 100.) Dr. Hash told Dr. Taylor that the anesthetist did not have to be a Medicaid
provider if the anesthetist agreed to accept the Medicaid rate. Dr. Taylor agreed to
move forward with that plan. Dr. Hash told Winner and Hiner about Dr. Taylor’s
agreement. (Id.) Dr. Hash approved the Dental Services Request for “TMJ
Surgery/Treatment” and directed the scheduling staff to schedule Wallace’s
appointment with Dr. Taylor. (Id. at ¶ 102.) Dr. Hash inadvertently checked the
“Hold” box on the request form, but noted in the form’s comments section,
“[a]pproved for TMJ surgery and any needed follow-up care.” (Id. at ¶ 103.) Dr.
Hash sent a follow-up email to Dr. Taylor’s office staff, summarizing the doctors’
conversation and confirming that Dr. Hash had approved the surgery. (Id. at ¶ 104.)
Wallace sent a kite to dental on September 19, 2016, complaining of jaw
pain and asking where he was on the list for partial dentures. (Doc. 26-1 at 26;
SUF at ¶ 108.) Dr. Hash saw Wallace on September 20, 2016, to discuss the TMJ
surgery and treatment plan. (SUF at ¶ 108.) Dr. Hash saw Wallace for a second
TMJ surgery consultation on September 29, 2019. (Id. at ¶ 112.)
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Dr. Taylor’s billing specialist emailed Dr. Hash on September 22, 2016,
requesting a written statement that DOC had approved Wallace’s procedure and
that Medicaid would pay for the procedure at Medicaid rates. (SUF at ¶ 109.) Dr.
Hash forwarded the email to Russ Danaher, who had been involved in the
conversations surrounding Wallace’s care, on September 26, 2016. (Id. at ¶ 110.)
Danaher updated Dr. Hash and Hiner on October 13, 2016, regarding Danaher’s
conversations with Dr. Taylor’s office. (Id. at ¶ 116.) Danaher and Dr. Taylor’s
office staff had determined that it was likely best for the surgery to be an in-patient
procedure. (Id.)
Wallace sent a kite to dental on October 23, 2016, indicating that his jaw
pain was getting worse and asking for information. (SUF at ¶ 117; Doc. 26-1 at
25.) Dental staff responded on October 25, 2016, that they were scheduling
Wallace for surgery. (SUF at ¶ 117; Doc. 26-1 at 25.) Dr. Taylor’s office faxed
records to DOC on October 24, 2016, requesting preauthorization for the surgery.
(SUF at ¶ 118.)
Wallace sent a kite to dental on October 28, 2016, indicating that his pain
medicine was no longer helping with his jaw pain and asking for information.
(SUF at ¶ 119; Doc. 26-1 at 24.) Dental staff replied on November 2, 2016, that
they were still trying to work with Dr. Taylor’s office to schedule the procedure.
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(SUF at ¶ 119.) Dr. Hash sent a follow-up email to scheduling staff on November
14, 2016, asking about his September 19, 2016, submission to schedule Wallace
with Dr. Taylor. (Id. at ¶ 121.) There proved to be a scheduling issue with Dr.
Taylor performing the surgeries as in-patient procedures instead of at his surgery
center. (Id.) Dr. Hash called Dr. Taylor’s clinic on November 14, 2016. (Id. at
¶ 123.) Dr. Hash saw Wallace for a consultation on November 15, 2016. (Id. at
¶ 124.) Dr. Hash requested a follow-up consultation in 2-3 weeks. (Id.)
Dr. Hash emailed Dr. Taylor’s office staff on December 5, 2016, with a
detailed authorization of Medicaid coverage for general anesthesia. (SUF at ¶ 126.)
On December 8, 2016, Dr. Hash confirmed with scheduling staff that the Medicaid
reimbursement issues were resolved and asked the scheduling staff to contact Dr.
Taylor’s office and schedule Wallace’s surgery as soon as possible. (Id. at ¶ 128.)
Dr. Hash saw Wallace for a quick consultation on December 8, 2016. (Id. at ¶
129.)
The scheduling staff reported to Dr. Hash on December 13, 2016, that they
were still having trouble scheduling Wallace’s surgery with Dr. Taylor. (SUF at
¶ 130.) Dr. Hash called Dr. Taylor’s office to discuss the scheduling issues on
December 19, 2016. (Id. at ¶ 133.) Thereafter, Dr. Hash and other MSP staff
communicated with Dr. Taylor’s office regarding Medicaid reimbursement rates
15

and whether DOC or Medicaid would reimburse Dr. Taylor. (Id. at ¶ 136.) Dr.
Hash explained that DOC would reimburse the anesthesiologist at the Medicaid
rate, regardless of whether the provider or the facility were approved by Medicaid.
(Id. at ¶¶ 136-137.) Dr. Taylor’s office staff informed Dr. Hash that they would
move forward with the Medicaid reimbursement rate. (Id. at ¶ 138.)
Dr. Hash notified scheduling staff of Dr. Taylor’s agreement and instructed
them to finish scheduling Wallace’s surgery. (SUF at ¶ 140.) Scheduling staff
responded to Dr. Hash on December 20, 2019, stating that Wallace was scheduled
for January 9, 2017. (Id. at ¶ 141.) Dr. Hash met with Wallace on December 21,
2016, and informed Wallace that scheduling staff had scheduled Wallace’s surgery
with Dr. Taylor. (Id. at ¶ 143.)
Dr. Paul Rees saw Wallace on January 5, 2017, for a pre-operation
evaluation. (SUF at ¶ 146.) Dr. Rees cleared Wallace for surgery. (Id. at ¶ 147.) Dr.
Taylor performed TMJ surgery on Wallace at Dr. Taylor’s surgery center on
January 9, 2017. (Id. at ¶ 150.) Wallace returned to MSP and remained in the
infirmary until January 10, 2017. (Id. at ¶ 151.) Dr. Hash evaluated Wallace on
January 10, 2017, and reported that Wallace was doing well. (Id. at ¶ 152.) Wallace
participated in rehabilitation through late-February 2017. (Id. at ¶ 155.)

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Wallace had begun a grievance process regarding his dental care at MSP by
submitting an informal resolution form on June 13, 2016. (Doc. 26-4 at 8.) Wallace
filed a formal grievance on June 30, 2019. (Doc. 26-4 at 6.) Wallace filed an
appeal to the Warden on September 9, 2019. Wallace was advised that Dr. Hash
would follow up with Wallace in two or three weeks. (Doc. 26-4 at 5.) Wallace
filed an appeal to the corrections director on September 27, 2016. (Doc. 26-4 at 3.)
Winner responded to Wallace’s appeal to the corrections director on October 13,
2016. (SUF at ¶¶ 114, 115.) Winner mistakenly stated in her response that
Wallace’s dental issues were already discussed. (Id.)
DISCUSSION
The Court reviews de novo Findings and Recommendations timely objected
to. 28 U.S.C. § 636(b)(1). The Court reviews for clear error the portions of the
Findings and Recommendations to which no party specifically objects. McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981).
A. Defendant Dr. Hash’s Objections
Dr. Hash moved for summary judgment on Wallace’s deliberate indifference
claim. Summary judgment is appropriate when the moving party “shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
17

as a matter of law.” Fed. R. Civ. P. 56(a). Judge Johnston found that Dr. Hash was
not entitled to summary judgment regarding Wallace’s deliberate indifference
claim between November 2014 and June 2016. (Doc. 36 at 45-51.) Dr. Hash
objects to that finding.
A plaintiff must show “acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs” to prove a § 1983 claim for
violating of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A
plaintiff must show both that his medical needs were objectively serious, and that
the defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501
U.S. 294, 299 (1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992)
(on remand).
The parties do not dispute that Wallace’s jaw condition presented a serious
medical need. (Doc. 36 at 42.) The issue is whether Defendants possessed a
culpable state of mind; that is, whether Defendants were deliberately indifferent.
See Hudson v. McMillian, 503 U.S. 1, 5 (1992). The Ninth Circuit requires proof
that the defendant consciously disregarded an excessive risk of which he was
aware. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). Deliberate
indifference is established only where a defendant subjectively “knows of and
disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391
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F.3d 1051, 1057 (9th Cir. 2004) (citation omitted). Deliberate indifference can be
established “by showing (a) a purposeful act or failure to respond to a prisoner’s
pain or possible medical need and (b) harm caused by the indifference.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citations omitted).
A delayed medical procedure can serve as the basis for a deliberate
indifference claim. See Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989).
Delay in treatment standing alone does not, however, constitute an Eighth
Amendment Violation. Id. Deliberate indifference is established only if prison
officials were aware that a dental issue was causing severe pain and permanent
damage during a delay. Id.
1. Dr Hash’s treatment of Wallace from November 2014 to June 2015
Wallace reported his jaw injury and pain when he arrived at MSP in October
2014. The record reflects that Dr. Hash recommended that Wallace have another
dental appointment one to three weeks after Wallace’s initial dental appointment
on November 19, 2014. Wallace sent numerous kites complaining of jaw pain
throughout the spring of 2015. The parties dispute whether Dr. Hash knew about
Wallace’s injury in November 2014 and whether Dr. Hash knew about Wallace’s
spring 2015 kites.

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The Court notes that Dr. Hash at the very least, was familiar enough with
Wallace’s situation in November 2014 to recommend that Wallace have another
dental appointment in one to three weeks. Genuine issues of material fact exist as
to Dr. Hash’s knowledge of Wallace’s jaw injury between November 2014 and
June 2015. Those genuine issues of material fact defeat summary judgment.
2. Dr Hash’s treatment of Wallace from July 2015 to October 2015
Dr. Hash approved Wallace’s referral to Dr. Taylor in July 2015. Wallace
did not see Dr. Taylor until October 2015. Dr. Hash’s role, if any, in the delay of
Wallace’s treatment between July 2015 and October 2015 presents a genuine issue
of material fact for the jury to evaluate.
3. Dr Hash’s treatment of Wallace from October 2015 to February
2016
Dr. Taylor examined Wallace on October 15, 2015. Dr. Taylor suggested
that Wallace have an MRI and, depending on the MRI results, have surgery. Dr.
Taylor’s office sent the evaluation notes to MSP on October 21, 2015. (SUF at
¶ 34.) Dr. Hash did not act after he received Dr. Taylor’s report. Wallace sent a
kite to dental on November 3, 2015, asking to discuss Dr. Taylor’s report. Dr. Starr
saw Wallace and submitted two dental services request forms, one for an MRI and

20

the other for TMJ surgery, on November 10, 2015. Dr. Hash testified that he
approved the MRI request that day.
Dr. Taylor’s office sent Dr. Hash two emails about Wallace’s MRI in
December 2015. Dr. Hash did not respond or otherwise follow up on Wallace’s
MRI appointment until January 2016. Wallace’s MRI occurred on February 9,
2016. There exist genuine issues of material fact as to Dr. Hash’s role, if any, in
the delay between Wallace’s appointment with Dr. Taylor on October 15, 2015,
and Wallace’s MRI on February 9, 2016.
4. Dr Hash’s treatment of Wallace from February 2016 to June 2016
MSP sent the MRI results to Dr. Taylor’s office on February 16, 2016.
Wallace’s case then remained stagnant until June 2016, when Dr. Taylor’s office
emailed Dr. Starr with billing issues. Wallace had sent numerous kites to dental
between February 2016 and June 2016, complaining of continued and increased
jaw pain. Wallace also received routine restorative dental treatments in March
2016 and in May 2016. Dr. Hash’s role, if any, in the delay between Wallace’s
MRI in February 2016, and when Wallace’s case gained momentum in June 2016,
presents a genuine issue of material fact.
The record reveals genuine issues of facts regarding whether Dr. Hash was
deliberately indifferent to Wallace’s serious medical needs between November
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2014 and June 2016. There is not sufficient evidence to establish a genuine issue of
material fact, however, regarding whether Dr. Hash was deliberately indifferent to
Wallace’s serious medical needs after June 2016. The Court reviewed carefully
Wallace’s medical and dental records. There is significant evidence that Dr. Hash
was directly and extensively involved in communicating with Dr. Taylor’s office,
resolving the billing issues, and scheduling Wallace’s surgery.
There also remains a genuine issue of material fact regarding whether the
delay in Wallace’s surgery affected the surgery’s success and caused Wallace
permanent damage. Wallace started having ear pain in March 2017 and the pain
became progressively worse through August 2017. (Doc. 26-1 at 69.) Dr. Taylor
performed another procedure on Wallace in September 2017. (Id. at 70.) Dr.
Taylor has asserted that a delay in surgery does not harm or damage the joint and
does not make future treatment more difficult. (SUF at ¶ 164.) Dr. Taylor
specifically stated, “[a]ny alleged delay in treatment of Mr. Wallace between my
evaluation and the eventual surgery would not have affected his prognosis or
outcome.” (Id. at ¶ 166.) Wallace has presented correspondence with medical
providers suggesting the delay may have affected the surgery’s success. (Doc. 31-1
at 15.) Wallace also has presented evidence of his pain and suffering during the
delay.
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The record reveals genuine issues of material fact regarding whether Dr.
Hash was deliberately indifferent to Wallace’s serious medical needs between
November 2014 and June 2016. The Court will adopt Judge Johnston’s
recommendation that the Court deny Dr. Hash’s motion for summary judgment
regarding Dr. Hash’s treatment of Wallace between November 2014 and June
2016.
B. Plaintiff Wallace’s Objections
Wallace objects to two of Judge Johnston’s findings. (Doc. 42 at 2.) Wallace
first objects to Judge Johnston’s finding that no genuine issue of fact exists
regarding whether Winner and Hiner were deliberately indifferent to Wallace’s
medical needs between June 2016 and January 2017. (Id. at 2.) Wallace argues that
Winner and Hiner did not make an actual effort to investigate the billing issues or
research additional medical providers after they became aware of his medical
issues in June 2016. (Id. at 2-3.)
The record demonstrates, however, that Winner and Hiner were actively
involved in seeking treatment for Wallace starting in June 2016. See supra at III.
Nothing in the record establishes that Winner or Hiner disregarded Wallace’s
serious medical needs. See Toguchi v. Chung, 391 F.3d at 1057. To the contrary,
the record is replete with emails from both Winner and Hiner inquiring about the
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status of Wallace’s treatment and suggesting alternatives. There are no genuine
issues of fact regarding whether Winner and Hiner were deliberately indifferent in
their efforts to secure treatment for Wallace. The undisputed facts support a finding
that Winner and Hiner did not act deliberately indifferent toward Wallace.
Second, Wallace objects to Judge Johnston’s finding that DOC was required
to comply with Montana law and investigate ways to pay the anesthesiologist fee at
the Medicaid rate. (Doc. 42 at 2.) Mont. Code Ann. § 53-6-1312 provides that
DOC should reimburse inmate’s health care services at Medicaid rates. The Court
cannot conclude that Winner and Hiner acted deliberately indifferent towards
Wallace’s serious medical needs when they noted the Medicaid reimbursement rate
and attempted to secure Wallace’s treatment at that rate. Winner and Hiner did not
act deliberately indifferent toward Wallace by attempting to comply with Montana
law and secure Wallace’s treatment at the Medicaid rate. The Court will adopt
Judge Johnston’s Findings and Recommendations (Doc. 36) in full.
ORDER
Accordingly, IT IS ORDERED that:
1.

Judge Johnston’s Findings and Recommendations (Doc. 36) are

ADOPTED IN FULL.

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2.

Defendants’ Motion for Summary Judgment (Doc. 25) as to

Defendants Winner, Hiner, Kohut, and Rees is GRANTED.
3.

Defendants’ Motion for Summary Judgment (Doc. 25) as to

Defendant Hash regarding Hash’s treatment of Wallace between November 2014
and June 2016 is DENIED.
DATED this 23rd day of January, 2020.

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