Ditter v. Nebraska Department of Correctional Services et al
Filing
100
MEMORANDUM AND ORDER - Defendants' Motions for Summary Judgment (Filing No. 81 ; Filing No. 84 ) are granted. The pending Motions filed by Plaintiff (Filing Nos. 67 , 71 , 75 , 77 , 79 , 86 , 87 , 92 , 93 , 99 ) are denied. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID DITTER,
)
)
Plaintiff,
)
)
v.
)
)
NEBRASKA DEPARTMENT OF
)
CORRECTIONAL SERVICES,
)
SCOTT FRAKES, in his individual & )
official capacity, RANDY T. KOHL, )
MD, in his individual & official
)
capacity, CORRECT CARE
)
SOLUTIONS, RONALD OGDEN,
)
DDS, in his individual & official
)
capacity, and LISA MATHEWS, in
)
her individual & official capacity,
)
)
Defendants.
)
)
4:16CV3159
MEMORANDUM
AND ORDER
Plaintiff, an inmate at the Tecumseh State Correctional Institution (“TSCI”),
claims that the dental care he received there constituted cruel and unusual punishment
under the Eighth and Fourteenth Amendments because Defendants were deliberately
indifferent to his serious medical needs. Specifically, Plaintiff alleges that Defendants
failed to provide him with dental implants, ground down some of his healthy teeth,
and—as to Correct Care Solutions—maintained a policy or custom of deliberately
disregarding state prisoners’ objectively serious dental needs in order to increase its
profit.
Plaintiff requests injunctive and monetary relief against defendants Nebraska
Department of Correctional Services (“NDCS”), Frakes, Kohl, and Mathews, and
monetary relief against defendants Correct Care Solutions (“CCS”) and Ogden.1
Pending before the court are Defendants’ Motions for Summary Judgment. (Filing No.
81; Filing No. 84.)
I. STANDARD OF REVIEW
Summary judgment should be granted only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). It is not the court’s function to weigh evidence
in the summary judgment record to determine the truth of any factual issue, but to
decide whether there is a genuine issue for trial. Schilf v. Eli Lilly & Co., 687 F.3d
947, 949 (8th Cir. 2012). In passing upon a motion for summary judgment, the district
court must view the facts in the light most favorable to the party opposing the motion.
Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997).
In order to withstand a motion for summary judgment, the nonmoving party
must substantiate allegations with “‘sufficient probative evidence [that] would permit
a finding in [his] favor on more than mere speculation, conjecture, or fantasy.’”
Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v.
City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence
is insufficient to avoid summary judgment.” Id. Essentially, the test is “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
1
Plaintiff’s claims for injunctive relief against defendants CCS and Ogden were
previously dismissed as moot because CCS—through which Ogden provided dental
services to TSCI inmates—is no longer under contract with the State of Nebraska and
no longer provides services at the TSCI, making it impossible for these defendants to
perform actions required by an injunction. (Filing No. 55.) Plaintiff filed a Second
Amended Complaint (Filing No. 62) requesting money damages from all defendants.
2
A party opposing summary judgment “may not rest upon the mere allegation
or denials of his pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial, and must present affirmative evidence in order to defeat a
properly supported motion for summary judgment.” Ingrassia v. Schafer, 825 F.3d
891, 896 (8th Cir. 2016) (quotation and citation omitted); see also Adickes v. S. H.
Kress & Co., 398 U.S. 144, 158-60 (1970).
II. UNDISPUTED MATERIAL FACTS
A. Facts Regarding NDCS Defendants
1.
Plaintiff David Ditter was, at all times relevant to this action, an inmate
at the TSCI. (Filing No. 1 at CM/ECF p. 1.)
2.
Defendant Dr. Randy Kohl was, at times relevant to this case, the
Medical Director for the NDCS. (Filing No. 1 at CM/ECF p. 8.)
3.
Defendant Lisa Mathews was, at times relevant to this case, the ADA
Coordinator for the NDCS. (Filing No. 1 at CM/ECF p. 8.)
4.
Defendant Scott Frakes was, at times relevant to this case, the Director
of the NDCS. (Filing No. 1 at CM/ECF p. 8.)
5.
Defendant Dr. Ronald Ogden, DDS, previously provided dental services
to inmates at the TSCI under contracts with CCS. (Filing No. 85-1, Aff. Ronald
Ogden, DDS ¶¶ 1-4.) On July 20, 2014, Dr. Ogden issued Plaintiff an upper complete
denture. (Filing No. 1 at CM/ECF p. 4.) Dr. Ogden then adjusted the denture nine
different times in 2014 because it was not fitting properly. (Filing No. 1 at CM/ECF
p. 4.)
6.
In December of 2015, defendant Dr. Randy Kohl, who at the time was
3
the Medical Director for the NDCS, received a letter from Plaintiff in which Plaintiff
requested dental implants. (Filing No. 83-1, Aff. Dr. Randy Kohl ¶ 4.)
7.
Defendant Kohl responded to Plaintiff’s letter and explained that dental
implants are not covered by insurance or Medicaid and that the NDCS does not
provide them. Defendant Kohl told Plaintiff to work with Dr. Ogden to resolve the
issues with his dentures. (Filing No. 83-1, Aff. Dr. Randy Kohl ¶ 5.)2
8.
Defendant Kohl received a grievance from Plaintiff in February 2016 in
which Plaintiff again stated that he wanted dental implants. Defendant Kohl looked
into the matter and determined that dental implants were not medically necessary in
Plaintiff’s case. (Filing No. 83-1, Aff. Dr. Randy Kohl ¶ 6.)
9.
Defendant Kohl told Plaintiff to work with dental staff to find an
alternative solution to the problems with his dentures. (Filing No. 83-1, Aff. Dr.
Randy Kohl ¶ 6.)
10. Dr. Sasek, a licensed dentist employed by the NDCS, saw Plaintiff on
August 3, 2017, and August 10, 2017. (Filing No. 83-3, Aff. Dr. Jamie Sasek ¶¶ 1, 4.)
Dr. Sasek saw that Plaintiff’s upper denture was not fitting properly, so he realigned
the denture to see if that would help. (Filing No. 83-3, Aff. Dr. Jamie Sasek ¶ 4.)
11. In Dr. Sasek’s opinion, dental implants are not a medical necessity in
Plaintiff’s case. (Filing No. 83-3, Aff. Dr. Jamie Sasek ¶ 5.)
12.
Dr. Wellensiek, a self-employed licensed dentist who treats inmates at
2
Plaintiff attempts to dispute this statement of fact by discussing how Dr. Kohl
ignored Plaintiff’s complaints about having to use large amounts of denture adhesive
each day. Plaintiff’s use of denture adhesive is completely irrelevant to this statement
of fact.
4
the TSCI, began providing dental services to Plaintiff in August of 2017. (Filing No.
83-2, Aff. Dr. Todd Wellensiek ¶¶ 1, 4.)
13. Dr. Wellensiek’s opinion on the proper treatment for Plaintiff is that he
requires a new upper denture made, along with a lower partial denture. (Filing No. 832, Aff. Dr. Todd Wellensiek ¶ 5.)
14. Dr. Wellensiek does not believe that dental implants are a medical
necessity for Plaintiff. Although dental implants can help some patients, they are
generally not medically necessary because there are other steps that can be
taken—such as realigning the dentures, creating a new denture, or if a patient is
having trouble chewing hard foods, they could switch to a soft diet. (Filing No. 83-2,
Aff. Dr. Todd Wellensiek ¶ 6.)
15. Because of Plaintiff’s insistence on getting dental implants, Dr.
Wellensiek recommended that he be approved for a consultation regarding the
implants, not because they were medically necessary, but so the NDCS or an outside
oral surgeon could issue the final decision to Plaintiff. (Filing No. 83-2, Aff. Dr. Todd
Wellensiek ¶ 7.)
16. On November 9, 2017, Plaintiff was seen by Dr. Smith, a licensed dentist
employed by the NDCS. (Filing No. 83-4, Aff. Dr. Eric Smith ¶¶ 1, 4.)
17. Dr. Smith was aware that Dr. Deol had approved a consultation between
Plaintiff and an outside oral surgeon regarding dental implants based on a
recommendation by Dr. Wellensiek. (Filing No. 83-4, Aff. Dr. Eric Smith ¶ 5; Filing
No. 83-2, Aff. Dr. Todd Wellensiek ¶ 1.)
18. In looking into this matter, Dr. Smith realized that while all dental
recommendations for outside consultations must go to a committee comprised of
dentists, this recommendation was inadvertently sent to the medical committee and
5
was approved without the input of dentists familiar with dental implants. (Filing No.
83-4, Aff. Dr. Eric Smith ¶ 6.)
19. Because dental implants are not a medical necessity in Plaintiff’s case,
and are not provided by the NDCS, and because Plaintiff lacked the funds to pay for
the dental implants on his own, Dr. Smith offered to make Plaintiff a new upper
denture and a partial lower denture. (Filing No. 83-4, Aff. Dr. Eric Smith ¶ 7.)
20. There is no notation in Plaintiff’s institutional medical records that he has
requested a soft-food diet or been advised to switch to a soft-food diet. (Filing No. 835, Aff. TSCI Director of Nursing Sara Allen ¶ 6.)3
21. Plaintiff’s institutional medical records, which include Plaintiff’s weight
measured on a monthly basis, indicate that since 2014, Plaintiff has never been
underweight according to the Centers for Disease Control and Prevention guidelines.
(Filing No. 83-5, Aff. TSCI Director of Nursing Sara Allen ¶ 5.)
B. Facts Regarding Defendants CCS & Ogden
22. Defendant CCS is a private company that previously contracted with the
NDCS to provide medical services at the TSCI. (Filing No. 44-1, Decl. W. Colton
Cline ¶¶ 4-6.)
23. Since approximately 2005, defendant Dr. Ogden has contracted with
defendant CCS to provide dental services, including services to inmates at the TSCI.
3
Plaintiff does not offer evidence creating a dispute as to this statement of fact.
Rather, he simply asserts that serving soft-food diets to inmates who are spending life
in prison is “both unreasonable and absurd,” and that such a diet is “not appetizing,
unpalatable and insufficient as compared to regular meal items.” (Filing No. 89 at
CM/ECF p. 8.)
6
(Filing No. 85-1, Decl. Ronald Ogden, DDS ¶ 2.)
24. Within the last year, CCS terminated its contract to provide services at
the NDCS, and July 24, 2017, was the last day CCS provided services at the TSCI.
(Filing No. 44-1, Decl. W. Colton Cline ¶¶ 5-6.)
25. Because CCS terminated its contract to provide medical services at the
TSCI, Dr. Ogden’s contract with CCS to perform dental services at the TSCI also
terminated, and his last day working at the TSCI was July 24, 2017. (Filing No. 85-1,
Decl. Ronald Ogden, DDS ¶¶ 3-4.)
26. While working at the TSCI, Dr. Ogden provided dental services to
Plaintiff on several occasions. (Filing No. 85-1, Decl. Ronald Ogden, DDS ¶ 6.)
27. In Dr. Ogden’s opinion, Plaintiff is in generally poor dental health, as
many of his teeth are missing or worn down, and he has significant bone loss in his
jaw. Due to the structure of Plaintiff’s mouth, his upper and lower teeth tend to come
into direct contact with one another. Plaintiff also has had porcelain crowns in place
for many years, which Dr. Ogden thinks have worn down Plaintiff’s lower teeth.
(Filing No. 85-1, Decl. Ronald Ogden, DDS ¶ 7.) Plaintiff disagrees with the source
of his “worn down” lower teeth, maintaining that Dr. Ogden himself ground down
Plaintiff’s lower teeth. (Filing No. 89 at CM/ECF p. 3.)
28. As part of the treatment Dr. Ogden provided, he oversaw the provision
of a full upper denture to Plaintiff on or about July 20, 2014. (Filing No. 85-1, Decl.
Ronald Ogden, DDS ¶ 8; Filing No. 1 at CM/ECF p. 4.)
29. Following the provision of a denture to Plaintiff, Dr. Ogden continued
to treat Plaintiff and adjusted the denture as necessary to meet Plaintiff’s dental needs.
(Filing No. 85-1, Decl. Ronald Ogden, DDS ¶ 8; Filing No. 1 at CM/ECF p. 4.)
7
30. Dr. Ogden concluded that the denture provided to Plaintiff was
appropriate and adequate for Plaintiff’s medical needs, and that the continued use of
the denture as provided did not pose any risk of harm to Plaintiff. (Filing No. 85-1,
Decl. Ronald Ogden, DDS ¶ 9.)
31. After receiving his denture, Plaintiff asked Dr. Ogden about dental
implants and indicated that he wanted to receive dental implants. (Filing No. 85-1,
Decl. Ronald Ogden, DDS ¶ 10; Filing No. 1 at CM/ECF pp. 4-5, 22.)
32. Dr. Ogden informed Plaintiff that he did not believe dental implants were
necessary for Plaintiff, and that he was not sure whether implant surgery could be
done in Plaintiff’s case. (Filing No. 85-1, Decl. Ronald Ogden, DDS ¶ 11.)4
33. Dr. Ogden told Plaintiff that an oral surgeon would be better able to
determine whether dental implant surgery could be done in Plaintiff’s case. (Filing
No. 85-1, Decl. Ronald Ogden, DDS ¶ 11; Filing No. 1 at CM/ECF pp. 4-5.)
34. Dr. Ogden would not have been able to provide dental implants himself
because he is not an oral surgeon. (Filing No. 85-1, Decl. Ronald Ogden, DDS ¶¶ 1112.)
35. Dental implants are not a covered benefit provided by the NDCS. Dental
implants are provided to inmates only if they pay for the implants themselves. (Filing
No. 85-1, Decl. Ronald Ogden, DDS ¶ 12; Filing No. 85-2, Decl. Jonathan J. Papik;
4
Plaintiff does not properly dispute this fact. The fact that the dentist who
replaced Dr. Ogden opined that Plaintiff has adequate bone to support a full upper
denture is completely irrelevant to Dr. Ogden’s belief that dental implants were not
necessary for Plaintiff and may not work in Plaintiff’s case. (Filing No. 89 at CM/ECF
p. 4.)
8
Filing No. 85-5, Kohl’s Resp. to Pl.’s Interrogs. Nos. 3, 5, 8.)5
36. Dr. Ogden consulted with outside oral surgeons regarding the feasibility
of dental-implant surgery for Plaintiff. (Filing No. 85-1, Decl. Ronald Ogden, DDS
¶ 13.)
37. Dr. Ogden consulted with Dr. Monte Zysset regarding the feasibility of
dental implant surgery for Plaintiff. Based on Dr. Ogden’s description of Plaintiff’s
dental condition, Dr. Zysset concluded that Plaintiff would not be an ideal candidate
for dental-implant surgery due to several contra-indicators, including a reduced
amount of bone structure in Plaintiff’s jaw and generally poor dental hygiene. (Filing
No. 85-7, Decl. Dr. Monte Zysset ¶¶ 4-7; Filing No. 85-1, Decl. Ronald Ogden, DDS
¶ 13.) Plaintiff disagrees that he has poor dental hygiene.
38. In Dr. Ogden’s professional medical opinion based on his own
observations and consultations with outside oral surgeons, dental implants were not
necessary for Plaintiff, and Plaintiff would not be an ideal candidate for dental
implants. (Filing No. 85-1, Decl. Ronald Ogden, DDS ¶ 14.)
39. Insofar as “grinding down” patients’ teeth is concerned, Dr. Ogden
described his practice as follows:
The only instances in which I would ever “grind” teeth would be to
polish and smooth the enamel following the breaking or chipping of a
tooth, restoration, or to adjust a tooth’s occlusion. To the extent I did this
with Plaintiff, I did so in good faith, in the exercise of medical judgment
and in accordance with the appropriate standard of care.
5
Plaintiff’s belief that this policy would change if implants were deemed
medically necessary does not create a dispute of fact. (Filing No. 89 at CM/ECF p. 4.)
9
(Filing No. 85-1, Decl. Ronald Ogden, DDS ¶ 15.)6
III. DISCUSSION
A. Deliberate Indifference to Serious Medical Needs
To prevail on an Eighth Amendment claim, Plaintiff must prove that
Defendants acted with deliberate indifference to his serious medical needs. See Estelle
v. Gamble, 429 U.S. 97, 106 (1976). The deliberate-indifference standard includes
both an objective and a subjective component. Plaintiff must demonstrate that (1) he
suffered from objectively serious medical needs, and (2) Defendants knew of, but
deliberately disregarded, those needs. See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th
Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).
“For a claim of deliberate indifference, ‘the prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional violation.’” Popoalii v. Corr.
Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (quoting Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir. 1995)); see also Bender v. Regier, 385 F.3d 1133,
1137 (8th Cir. 2004) (a prisoner’s mere disagreement with the course of his medical
treatment fails to state a claim against a prison physician for deliberate indifference
under the Eighth Amendment).
6
Plaintiff disagrees with Dr. Ogden’s testimony. However, he presents no
evidence in support of his disagreement, other than an alleged hearsay statement by
another dentist who supposedly said he “didn’t know why Dr. Ogden would do that
(grind off healthy teeth).” (Filing No. 89 at CM/ECF p. 5.) State of Neb. ex rel. Nelson
v. Cent. Interstate Low-Level Radioactive Waste Comm’n, 26 F.3d 77, 80 (8th Cir.
1994) (“A party opposing a summary judgment motion cannot simply rely on
allegations, but must come forward with specific evidence establishing that there is
a genuine issue fact for trial.”).
10
“The plaintiff-inmate must clear a substantial evidentiary threshold to show that
the prison’s medical staff deliberately disregarded the inmate’s needs by administering
an inadequate treatment.” Meuir v. Greene Cnty. Jail Emps., 487 F.3d 1115, 1118 (8th
Cir. 2007). The Eighth Circuit has held that prison medical professionals do not act
with deliberate indifference where they do not ignore a prisoner’s complaints, but
exercise independent medical judgment and attempt to treat them in a manner other
than the precise manner the prisoner requests. See Allard v. Baldwin, 779 F.3d 768,
772 (8th Cir. 2015) (granting summary judgment to medical defendants who did not
ignore inmate’s complaints, but saw inmate on several occasions and tried numerous
treatments); Logan v. Clarke, 119 F.3d 647, 649-50 (8th Cir. 1997) (prison doctors
were not deliberately indifferent where they treated prisoner on numerous occasions
and offered sensible medication and treatment).
1. Objectively Serious Medical Need
Plaintiff’s mere desire for dental implants instead of the dentures that were
prescribed to him does not create an objectively serious medical need for Eighth
Amendment purposes. An objectively serious medical need is “one that either has
been diagnosed by a physician as requiring treatment, or is so obvious that even a
layperson would easily recognize the necessity for a doctor’s attention.” Jones v.
Minnesota Dep’t of Corrections, 512 F.3d 478, 481 (8th Cir. 2008) (citations and
quotations omitted). Furthermore, where a particular course of treatment sought is
medically unnecessary, there is no objectively serious medical need under the Eighth
Amendment. Roe v. Crawford, 514 F.3d 789, 801 (8th Cir. 2008) (elective, nontherapeutic abortion did not constitute serious medical need for purposes of Eighth
Amendment); Ross v. Carpenter, No. 3:15-CV-03013, 2016 WL 3223620, at *6
(D.S.D. June 8, 2016), aff’d, 676 F. App’x 612 (8th Cir. 2017), cert. denied, 138 S.
Ct. 378 (2017) (without showing that medical procedure was medically necessary,
inmate’s allegation that procedure was necessary was simply disagreement with
treatment decision, which does not constitute constitutional violation); Ramirez v.
United States, No. CIV. 11-2931, 2013 WL 646238, at *6 (D. Minn. Feb. 4, 2013),
11
report and recommendation adopted, No. 11-CV-2931, 2013 WL 646322 (D. Minn.
Feb. 21, 2013) (letter from outside physician that did not state procedure was
medically necessary failed to demonstrate objectively serious medical need for
purposes of Eighth Amendment).
Here, Plaintiff has furnished no evidence that he has a diagnosed medical need
for dental implants or that the need for such implants would be obvious to a layperson;
rather, he has merely alleged that implants would have been more effective than the
dentures he was given. The desire for an alternative treatment, however, does not rise
to the level of a serious medical need. Dulany, 132 F.3d at 1240 (“In the face of
medical records indicating that treatment was provided and physician affidavits
indicating that the care provided was adequate, an inmate cannot create a question of
fact by merely stating that [he] did not feel [he] received adequate treatment.”).
The evidence here shows that Dr. Ogden, Dr. Kohl, Dr. Wellensiek, Dr. Sasek,
and Dr. Smith all concluded that dental implants were not medically necessary in
Plaintiff’s case; the denture treatment provided to Plaintiff was medically appropriate;
and, in any event, Plaintiff would not be a good candidate for dental implants. Other
courts have routinely found that dental implants are not a medical necessity and a
plaintiff cannot show that a defendant violated his constitutional rights by not
providing them. See, e.g., Diaz v. Chandler, No. 14 C 50047, 2016 WL 1073103, at
*11, *18 (N.D. Ill. Mar. 18, 2016) (dental implants were medically unnecessary for
plaintiff); Reaves v. Voglegesang, No. 5:10-CV-044-BG, 2010 WL 8445306, at *4
(N.D. Tex. Nov. 23, 2010), report and recommendation adopted, No.
5:10-CV-00044-C, 2012 WL 666205 (N.D. Tex. Feb. 29, 2012), aff’d, 517 F. App’x
233 (5th Cir. 2013) (dental implants were not necessary to treat a serious medical
need); Hawkins v. Mahoney, No. 04-07-H-DWM, 2006 WL 2587753, at *7 (D. Mont.
Sept. 5, 2006) (dental implants considered high-end treatment by organized dentistry
standards and medically unnecessary for plaintiff); Mason v. Angelone, No.
CIV.A.7:01-CV-309, 2003 WL 23312780, at *3 (W.D. Va. Mar. 31, 2003), aff’d, 71
F. App’x 283 (4th Cir. 2003) (plaintiff had no medical need for dental implants). Cf.
12
Birdsell v. United Parcel Service of America, Inc., 94 F.3d 1130, 1133-34 (8th Cir.
1996) (affirming district court’s holding that ERISA plan administrator reasonably
concluded dental implants to be medically unnecessary).
Therefore, Plaintiff’s Eighth Amendment claim fails as a matter of law because
Plaintiff cannot demonstrate a serious medical need for dental implants. Roe, 514 F.3d
at 801 (no objectively serious medical need under the Eighth Amendment where
treatment sought was medically unnecessary).
2. Deliberate Disregard of Serious Medical Needs
Even if Plaintiff could show a serious medical need for dental implants, the
evidence does not support the conclusion that any of the defendants knew of a
substantial risk to Plaintiff’s health if he were denied such implants and deliberately
disregarded that risk through actions that were “so inappropriate as to evidence
intentional maltreatment or a refusal to provide essential care.” See Dulany, 132 F.3d
at 1241.
Even though none of the defendants believed dental implants were a medical
necessity for Plaintiff, they spent a considerable amount of time evaluating Plaintiff’s
options and rendering treatment. For example, Dr. Ogden provided and repeatedly
adjusted Plaintiff’s dentures and consulted with oral surgeons regarding Plaintiff’s
request for dental implants, even though Dr. Ogden was not permitted to provide
implants and he believed them to be unnecessary in Plaintiff’s case. In 2014, when
Plaintiff complained about his dentures not fitting properly, Dr. Ogden adjusted them
nine different times. In 2015 and 2016, when Plaintiff contacted Defendant Kohl, the
Medical Director for NDCS at the time, regarding his desire for dental implants, Kohl
looked into the matter, determined that dental implants were not medically necessary,
and instructed Plaintiff to work with TSCI dental staff to find an alternative solution
to his denture problems. Dr. Sasek treated the Plaintiff in 2017 and also realigned his
dentures to improve their fit. Dr. Wellensiek treated the Plaintiff in 2017 and
13
determined that Plaintiff should be provided with a new upper denture and a partial
lower denture, which Dr. Smith offered to Plaintiff in November of 2017.
Further, Plaintiff has failed to present evidence establishing that any “grinding”
of his teeth by Dr. Ogden was not for the purpose of polishing or smoothing enamel
following the breaking or chipping of a tooth or to adjust a tooth’s occlusion, as is Dr.
Ogden’s normal practice. Nor has Plaintiff created a genuine issue of material fact as
to Dr. Ogden’s testimony that he provided such treatment in good faith, in the exercise
of medical judgment, and within the appropriate standard of care.
At most, Plaintiff’s assertions show a difference of medical opinion, not a
genuine issue of material fact precluding summary judgment. Meuir v. Greene Cty.
Jail Employees, 487 F.3d 1115, 1118-19 (8th Cir. 2007) (“[A] prisoner’s mere
difference of opinion over matters of expert medical judgment or a course of medical
treatment fail[s] to rise to the level of a constitutional violation.”) (internal quotation
marks and citation omitted); Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (“Prison
officials do not violate the Eighth Amendment when, in the exercise of their
professional judgment, they refuse to implement a prisoner’s requested course of
treatment.”); Davis v. Hall, 992 F.2d 151, 153 (8th Cir. 1993) (“Disagreement with
a medical judgment is not sufficient to state a claim for deliberate indifference to
medical needs.”).
In short, Defendants did not ignore Plaintiff’s complaints, but provided constant
care in the exercise of their professional judgment. This is not deliberate indifference.
Allard, 779 F.3d at 772 (prison medical staff was entitled to summary judgment
because even if Plaintiff was misdiagnosed, staff did not ignore plaintiff’s complaints
or overall condition, but was constantly responsive to plaintiff’s complaints and
provided numerous examinations, treatments, and potential remedies); Logan, 119
F.3d at 649-50 (prison doctors were not deliberately indifferent where they treated
14
prisoner on numerous occasions and offered sensible medication and treatment).7
3. Defendants Frakes & Mathews in Their Individual Capacities
Because there is no evidence that defendant Frakes, Director of the NDCS,
directly and personally participated in Plaintiff’s dental treatment, or the alleged lack
thereof, Plaintiff’s § 1983 claim against him must be dismissed.8 Langford v. Norris,
614 F.3d 445, 460 (8th Cir. 2010) (prison supervisors cannot be held liable under §
1983 on a theory of respondeat superior); Brown v. Wallace, 957 F.2d 564, 566 (8th
Cir. 1992) (personal involvement of the named defendant is an essential element of
any § 1983 claim because the doctrine of respondeat superior does not apply to actions
brought under § 1983); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir.1985) (claim
not cognizable under § 1983 because plaintiff did not allege defendant was personally
7
Other courts have found that the prescription of dentures instead of dental
implants does not constitute deliberate indifference. See, e.g., Evins v. Curry, No. C
08-2537 CW (PR), 2010 WL 476678, at *7 (N.D. Cal. Feb. 3, 2010) (no deliberate
indifference where defendants determined dentures were adequate for inmate instead
of dental implants); Silverbrand v. Woodford, No. CV 06-3253-R(CW), 2010 WL
3635780, at *8 (C.D. Cal. Aug. 18, 2010), report and recommendation adopted, No.
CV 06-3253-R(CW), 2010 WL 3635303 (C.D. Cal. Sept. 16, 2010) (“[T]he Eighth
Amendment does not require . . . Plaintiff to be provided with dental implants, when
state policy and state practice have provided an alternative treatment that is
constitutionally acceptable, however inferior Plaintiff may find it to be.”).
8
Prison supervisors can incur liability when “their corrective inaction amounts
to deliberate indifference to or tacit authorization of the violative practices.” Langford
v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (internal quotation marks and citation
omitted). But such liability requires the supervisor to know that the prisoner’s serious
medical needs are not being adequately treated, and to remain indifferent. Id.; Meloy
v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002) (“The supervisor must know about
the conduct and facilitate it, approve it, condone it, or turn a blind eye [to it].”)
(internal quotation marks and citation omitted). Because I have concluded that (1)
Plaintiff has not demonstrated a serious medical need and (2) Plaintiff was adequately
treated, defendant Frakes cannot be liable under this theory.
15
involved in or had direct responsibility for incidents that injured him).
Likewise, defendant Mathews, ADA Coordinator for the NDCS, is not a dentist
or medical provider. She has no authority to provide medical or dental treatment to the
Plaintiff, and she cannot be held liable for the medical defendants’ diagnostic and
treatment decisions. Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002) (“A
prison’s medical treatment director who lacks medical expertise cannot be liable for
the medical staff’s diagnostic decisions.”); Camberos v. Branstad, 73 F.3d 174, 176
(8th Cir. 1995) (because prison treatment director and warden lacked “medical
expertise, they cannot be liable for the medical staff’s diagnostic decision not to refer
[the plaintiff] to a doctor to treat his shoulder injury”); Kulow v. Nix, 28 F.3d 855, 859
(8th Cir. 1994) (“‘if any claim of medical indifference . . . is to succeed, it must be
brought against the individual directly responsible for [the plaintiff’s] medical care’”)
(quoting Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992)).
Therefore, summary judgment must also be granted in favor of defendants
Frakes and Mathews.
4. NDCS Defendants in Official Capacities
Beyond the fact that I have found no constitutional violation for which Plaintiff
is entitled to any type of relief, Plaintiff’s claim for monetary relief against defendants
NDCS and Frakes, Kohl, and Mathews in their official capacities is also barred by the
Eleventh Amendment. The Eleventh Amendment bars claims for damages by private
parties against a state and its agencies or departments. See Egerdahl v. Hibbing Cmty.
Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ.,
64 F.3d 442, 446-47 (8th Cir. 1995); Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office. As such, it is
no different from a suit against the State itself.”) (internal citation omitted). Any
award of retroactive monetary relief payable by the state, including for back pay or
16
damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by
the state or an override of immunity by Congress. Egerdahl, 72 F.3d at 618-19. Here,
there is nothing in the record before the court showing that the State of Nebraska
waived, or that Congress overrode, sovereign immunity in this matter. Accordingly,
Plaintiff’s claim for money damages against defendants NDCS and Frakes, Kohl, and
Mathews in their official capacities is barred by the Eleventh Amendment.
5. Qualified Immunity
Defendants in their individual capacities argue that they are entitled to qualified
immunity as to Plaintiff’s claim for money damages. As discussed above, the court
has decided that Defendants are entitled to summary judgment on the merits of
Plaintiff’s deliberate-indifference claim. “[I]f the court finds no constitutional
violation occurred, the analysis ends and the issue of qualified immunity is not
addressed. This is not to say, however, the defendant official is entitled to qualified
immunity. Rather, if no constitutional violation occurred, plaintiff’s claim fails as a
matter of law because plaintiff did not prove an essential element of the § 1983
claim.” Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007) (citations
omitted). Alternatively, because there was no constitutional violation, each defendant
is entitled to qualified immunity. See Payne v. Britten, 749 F.3d 697, 707 (8th Cir.
2014) (“For example, a district court could begin and end with the first question,
granting qualified immunity because there was no constitutional violation.”).
B. Policy or Custom of Deliberate Indifference
Plaintiff claims that CCS had a policy or custom of deliberately disregarding
state prisoners’ objectively serious dental needs. Assuming that its provision of dental
services to Plaintiff at the TSCI constituted acting under the color of state law for
purposes of section 1983, “a corporation acting under color of state law will only be
held liable under § 1983 for its own unconstitutional policies.” Sanders v. Sears,
Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir. 1993) (citing Monell v. Department
17
of Social Servs., 436 U.S. 658, 690 (1978)).
To establish “custom” liability of a local government entity under § 1983 for
failure to provide medical care, the plaintiff must demonstrate (1) the existence of a
continuing, widespread, persistent pattern of unconstitutional misconduct by the
governmental entity’s employees, (2) deliberate indifference to, or tacit authorization
of, such conduct by the governmental entity’s policymaking officials after notice to
the officials of that misconduct, and (3) the custom was a moving force behind the
constitutional violation. Johnson v. Douglas Cnty. Med. Dep’t, 725 F.3d 825, 828 (8th
Cir. 2013). Similarly, a policy that results in inadequate treatment is not
unconstitutional unless it evinces deliberate indifference to serious medical needs. See
Jenkins v. Cty. of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009).
The claims against CCS fail as a matter of law because, as discussed above,
there is no underlying constitutional violation. Even if there were a constitutional
violation, CCS would be entitled to summary judgment because there is no evidence
that any constitutional violation occurred as a result of a custom or policy of CCS.
CCS is therefore entitled to summary judgment.
IV. PLAINTIFF’S MOTIONS
Plaintiff has filed several miscellaneous motions which will be denied for the
reasons discussed below.
•Supplemental Pleadings; Motion for Permission to Add Recent Information;
Motion for an Order to Preserve Evidence for Trial (Filing No. 67)
This Motion will be denied because it violates the court’s prior orders,
which prohibited Plaintiff from filing any further motions to amend the
pleadings. (Filing No. 56, Revised Order Setting Schedule for Progression of
Case ¶ 2; Filing No. 55 at CM/ECF p. 8 (“Plaintiff shall not file any additional
18
motions to amend his complaints.”).) Plaintiff’s Motion to Preserve his current
upper complete denture as evidence for trial will be denied as moot because
there will not be a trial.
•Letter Requesting Kohl’s Answers to Plaintiff’s Interrogatories (Filing No. 71)
Plaintiff’s request will be denied as moot because Plaintiff admits he
received Kohl’s answers just after filing the letter. (Filing No. 76, Pl.’s Br. at
CM/ECF p. 1.)
•Motion to Compel More Definite & Precise Answers to Interrogatories from
Dr. Ronald Ogden, DDS, and Correct Care Solutions (Filing No. 75)
This Motion will be denied because: (1) Interrogatory Nos. 26 and 27
seek information that is either irrelevant or overly broad and not proportional
to the needs of the case9; (2) Interrogatory No. 28, which asks whether there is
a “written or unwritten policy or custom in which it is understood by Correct
Care Solutions employees that they are to make cost conscious decisions when
providing medical and dental care to inmates,” is overbroad because it asks
Defendants to relay all of its employees’ subjective understanding and, even if
there were such a policy or custom, it was not unconstitutional unless it evinced
deliberate indifference to serious medical needs, Jenkins v. Cty. of Hennepin,
557 F.3d 628, 633-34 (8th Cir. 2009), which it did not, as decided above; (3)
Interrogatory No. 29 is argumentative, and therefore improper, because it
assumes CCS’s improper conduct and requests and explanation for such
9
See, e.g., Allen v. Zavaras, 2010 WL 1348748, at *2 (D. Colo. March 30,
2010) (number of lawsuits against defendants was not relevant to whether defendants
acted with deliberate indifference in this case); Sattari v. Citi Mortg., 2010 WL
4782133, at *3 (D. Nev. Nov. 17, 2010) (number of lawsuits filed against defendant
was irrelevant and unreasonably broad).
19
conduct10; and (4) Interrogatory Nos. 11, 40, 46, 47, and 48 were answered.11
•Motion for Leave to File New Discovered Evidence and Motion to Preserve
Evidence for Trial (Filing No. 77)
Although Plaintiff states that he “is not seeking leave to file
Supplemental Pleadings or to Amend the Pleadings,” Plaintiff is seeking to do
just that because the “new information” contained in Plaintiff’s Motion consists
of additional allegations that should have been included in his three
Complaints. Accordingly, Plaintiff’s Motion will be denied because it violates
the court’s prior orders, which prohibited Plaintiff from filing any further
motions to amend the pleadings. (Filing No. 56, Revised Order Setting
Schedule for Progression of Case ¶ 2; Filing No. 55 at CM/ECF p. 8 (“Plaintiff
shall not file any additional motions to amend his complaints.”).) Plaintiff’s
Motion to Preserve his dental X-rays as evidence for trial will be denied as
moot because there will be no trial.
•Motion to Compel More Definite & Precise Answers to Interrogatories from
Dr. Randy T. Kohl (Filing No. 79)
This Motion will be denied because defendant Kohl answered the
10
Zadrozny v. Bd of Trustees Dist. No. 508, 1991 WL 66075, at *1 (N.D. Ill.
Apr. 24, 1991) (finding that argumentative interrogatories were improper); see also
V.B. v. Advanced Bionics, LLC, 2013 WL 12094316, at *4 (S.D. Fla. Jan. 3, 2013)
(denying motion to compel party to respond to interrogatory that “assumes facts”).
11
“The purpose of a motion to compel discovery is not to challenge the
truthfulness of the response but rather to compel a party to answer the interrogatory.”
Annabel v. Heyns, 2014 WL 1207802, at *1 (E.D. Mich. March 24, 2014) (emphasis
in original). When a party does so, “there is nothing for the court to compel.” Id.; see
also Hickman v. Silva, 2012 WL 4973041, at *2 (S.D. Tex. Oct. 17, 2012) (a party’s
“quibble[] with the veracity of the response … is not a basis for a motion to compel”).
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disputed Interrogatory Nos. 1, 2, 8, and 9. “The purpose of a motion to compel
discovery is not to challenge the truthfulness of the response but rather to
compel a party to answer the interrogatory.” Annabel v. Heyns, 2014 WL
1207802, at *1 (E.D. Mich. March 24, 2014) (emphasis in original). When a
party does so, “there is nothing for the court to compel.” Id.; see also Hickman
v. Silva, 2012 WL 4973041, at *2 (S.D. Tex. Oct. 17, 2012) (a party’s
“quibble[] with the veracity of the response … is not a basis for a motion to
compel”). Kohl properly objected to Interrogatory No. 5, which asks where the
money comes from for the NDCS to treat inmates with hepatitis C, as
irrelevant.
•Motion to Designate Five Witnesses as Expert Witnesses (Filing No. 86)
This Motion will be denied as moot because there will be no trial.
•Motion for Leave to File New Discovered Evidence (Filing No. 87)
This Motion requests that the court consider an Internet article provided
by Plaintiff’s family member that asserts that zinc in denture adhesives can
cause neuropathy, which Plaintiff now claims to have. Plaintiff’s Motion will
be denied because the article is inadmissible hearsay; the article is irrelevant to
the claims contained in Plaintiff’s three Complaints; and because Plaintiff’s
purported new claim that a product he used caused him personal injury is an
action sounding in tort. “Section 1983 imposes liability for violations of rights
protected by the Constitution, not for violations of duties of care arising out of
tort law. Remedy for the latter type of injury must be sought in state court under
traditional tort-law principles.” Baker v. McCollan, 443 U.S. 137, 146 (1979).
•Renewed Motion for Appointment of Counsel (Filing No. 92)
This Motion will be denied as moot because this Memorandum and
21
Order and accompanying Judgment dispose of this case.
•Motions for Leave to File Newly Discovered Evidence (Filing Nos. 93 & 99)
Plaintiff’s Motions to file new “evidence” regarding his alleged zincinduced injury will be denied because Plaintiff is simply seeking to advise the
court of new factual allegations beyond the deadline to amend his Complaints;
these allegations relate to a tort claim not actionable under 42 U.S.C. § 1983;
and the allegations are irrelevant to the claims contained in Plaintiff’s three
Complaints.
Accordingly,
IT IS ORDERED:
1.
Defendants’ Motions for Summary Judgment (Filing No. 81; Filing No.
84) are granted;
2.
The pending Motions filed by Plaintiff (Filing Nos. 67, 71, 75, 77, 79,
86, 87, 92, 93, 99) are denied;
3.
Judgment shall be entered by separate document.
DATED this 11th day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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