Wilder v. Krebs

Filing 62

OPINION AND ORDER adopting 52 Report and Recommendation of Magistrate Judge Mary Gordon Baker; denying 42 Motion for Summary Judgment. Plaintiff's § 1983 claim contains genuine issues of material fact that preclude summary judgment; therefore, Dr. Krebs' motion for summary judgment (ECF No. 42) is denied and this matter will proceed to trial. Signed by Honorable Cameron McGowan Currie on 8/23/2018.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Samuel Wilder, #258295,

C/A. No. 2:17-763-CMC-MGB

Plaintiff
v.
Opinion and Order
William F. Krebs,
Defendant.

This matter is before the court on Defendant William F. Krebs’ (“Dr. Krebs”) motion for
summary judgment. ECF No. 42. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Mary Gordon
Baker for pre-trial proceedings and a Report and Recommendation (“Report”). On July 5, 2018,
the Magistrate Judge issued a Report recommending Dr. Krebs’ motion for summary judgment
be denied. ECF No. 52. The Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report and the serious consequences if they failed to do
so. On July 19, 2018, Dr. Krebs filed objections to the Report as well as a motion for extension
of time to file supplemental objections. ECF Nos. 54, 55. The court granted Dr. Krebs’ motion
for extension, allowing until July 30, 2018, for Dr. Krebs to file objections and a 14 day period
after that for Plaintiff to file any response. ECF No. 57. Dr. Krebs did not file supplemental
objections, and Plaintiff filed his reply on August 13, 2018. ECF No. 60.
1. Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the

court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection
is made. The court may accept, reject, or modify, in whole or in part, the recommendation made
by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See
28 U.S.C. § 636(b).
2. Discussion
The Report recommends denying summary judgment and addresses Dr. Krebs’
arguments regarding frivolity, statute of limitations, and deliberate indifference, finding a delay
of over a year between knowledge Plaintiff needed a filling and scheduling him for the filling,
and another year before he was actually seen, presented a triable claim of deliberate indifference.
ECF No. 52.

Dr. Krebs objects to the Report, arguing: (1) Plaintiff failed to amend his

Complaint to properly state a claim against him; (2) Plaintiff failed to comply with the South
Carolina Medical Malpractice Reform Act, as he did not file a Notice of Intent to File Suit with
an expert affidavit; (3) Plaintiff failed to establish Dr. Krebs was acting under color of state law
during the period the allegations took place; and (4) Plaintiff failed to establish Dr. Krebs was
deliberately indifferent to a serious medical need. ECF No. 55. Plaintiff replied, asserting Dr.
Krebs had authority to schedule treatment after his initial evaluation, according to South Carolina
Department of Corrections (“SCDC”) policy. ECF No. 60.

2

a. Sufficiency of Complaint Allegations
Dr. Krebs’ first three arguments allege various insufficiencies in Plaintiff’s Second
Amended Complaint. 1 The court finds these arguments unavailing. It is well established pro se
complaints are held to a less stringent standard than formal pleadings drafted by an attorney, and
the court should liberally construe a pro se complaint to allow development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). As recognized by the Magistrate
Judge, this court previously determined Plaintiff’s proposed amendments raised factual issues
regarding his deliberate indifference claim. See ECF No. 16. Plaintiff thereafter filed his
Amended and Second Amended Complaints, including facts regarding the delay in his treatment
after Dr. Krebs was aware Plaintiff had a “bad tooth” that needed attention. See ECF No. 36 at
5, Second Amended Complaint. Plaintiff also noted he was bringing suit against “state or local
officials” in his Second Amended Complaint, he is a “convicted and sentenced state prisoner,”
and Dr. Krebs is the dentist he saw at McCormick Correctional Institution. Id. at 2, 5, 8. The
court finds these allegations in a pro se complaint sufficient to meet pleading standards to allege
state action. See Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 354 (4th Cir. 2003) (“The
Fourth Circuit has held that one of the paradigmatic means by which a private party becomes
subject to section 1983 is through the government’s conferral upon that party of what is, at core,
sovereign power – a power, in other words, that is traditionally the exclusive prerogative of the
State.”) (internal citations omitted).

1

Dr. Krebs did not object to the Magistrate Judge’s recommendation that the instant action is not
time barred. The court, therefore, reviews that conclusion for clear error, and agrees Plaintiff’s
claim is not barred by the statute of limitations.
3

In addition, it is not necessary for Plaintiff to file a notice of intent to file suit and expert
affidavit to bring a § 1983 action based on deliberate indifference to medical needs. South
Carolina Code § 15-79-125 requires such a filing before filing a summons and complaint
alleging acts of negligence against a health care provider. However, Plaintiff’s instant claim is
not one under state law for negligence: it is a federal claim for deliberate indifference to dental
needs, which requires a higher showing than negligence. See Jackson v. Lightsey, 775 F.3d 170,
178 (4th Cir. 2014) (“[Deliberate indifference] is a higher standard for culpability than mere
negligence or even civil recklessness, and as a consequence, many acts or omissions that would
constitute medical malpractice will not rise to the level of deliberate indifference.”). Plaintiff
was not required to meet the requirements of S.C. Code § 15-79-125 to file his federal § 1983
claim.
b. Deliberate Indifference
Dr. Krebs next contends Plaintiff has not shown a violation of his Eighth Amendment
rights. ECF No. 55 at 3. He notes the Report relied on an unpublished case, instead of “existing
precedent.” Id. (citing Formica v. Aylor, __ F. App’x __, 2018 WL 3120790 (4th Cir. June 25,
2018)). Dr. Krebs distinguishes Formica by noting the defendant in that case “unlike Dr. Krebs,
had the authority to schedule treatment” and yet denied such treatment for lack of payment. Id.
at 4. According to Dr. Krebs, he had “no involvement in how or when Plaintiff was scheduled
for the dental clinic,” but made appropriate evaluations and treatment recommendations when he
did see Plaintiff. 2 Id. Plaintiff seems to misunderstand the Report’s analysis of Formica, and

2

Dr. Krebs argues Plaintiff failed to offer evidence he had any control or ability to schedule
inmates for dental clinic.
4

argues it does not apply to his case, apparently because the defendant in that case was not the
dentist.

In response, Plaintiff offers evidence in the form of a SCDC policy, noting “[o]nce an
inmate has been evaluated/treated and if further treatment is needed, the dentist may give
him/her another appointment or allow the inmate to request another appointment using SCDC
Form 19-11, Request to Staff Member.” ECF No. 60-1 at 2. Plaintiff contends this indicates Dr.
Krebs had authority to schedule further treatment for Plaintiff after his initial appointment
showed he needed a filling. ECF No. 60 at 2.
The court agrees with the Magistrate Judge that Formica, while not binding, is persuasive
authority and relevant to this case as it concerned a delay in treatment for a decaying tooth which
led to further injury. While the nurse in that case held a different position than Dr. Krebs, the
case does support the proposition that a delay in dental treatment can be considered an Eighth
Amendment violation under some circumstances. Dr. Krebs distinguishes Formica by arguing
he did not have the ability to schedule Plaintiff for a filling and merely was able to treat the
problem when the appointments were made. However, Plaintiff presents evidence in the form of
a SCDC policy providing a dentist is able to make another appointment for further treatment
after an evaluation. 3
Plaintiff was first seen by Dr. Krebs on August 22, 2013, when he reported to the dental
clinic complaining of a toothache. Dr. Krebs evaluated Plaintiff’s tooth and “observed signs of

3

In addition, Dr. Krebs apparently did take action to schedule Plaintiff for an extraction after the
October 15, 2014 medical consult. ECF No. 42-3 at 22.
5

decay both clinically and radiographically.” ECF No. 42-2, ¶ 6. Dr. Krebs advised Plaintiff the
tooth “‘can possibly be saved’ and we would attempt a filling at his next visit.” Id. There is no
evidence an appointment was scheduled for Plaintiff to return for a filling at that time, despite a
record entry by a medical assistant in the dental clinic stating “schedule for filling n/v by Dr.
Krebs.” ECF No. 42-3 at 30.
Plaintiff reported to sick call on October 15, 2014 complaining “that left tooth is totally
decayed . . . he can not eat on left side at all . . . wants filling in tooth . . . continues to sign up on
dental sheet but not being seen.” Id. at 22. Medical staff noted Plaintiff’s “last tooth on left hand
side is totally decayed.” Id. Dr. Krebs was consulted and informed that Plaintiff was in pain due
to his tooth (which Dr. Krebs had previously noted needed a filling) and could no longer chew on
his left side. ECF No. 42-2 at 1. 4 Plaintiff was referred to and allegedly “called to the dental
clinic” on October 20, 2014, but was a “no show for ext,” according to Dr. Krebs’ note of that
date. 5 ECF No. 42-3 at 22.
Plaintiff’s next appointment at the dental clinic was September 29, 2015, “when he was
scheduled for a filling.” ECF No. 42-2 at 2. Dr. Krebs noted Plaintiff’s tooth “now had gross
mesial decay and was not restorable and required extraction.” Id. However, Plaintiff refused to
have the tooth extracted.
As of the first appointment in August 2013, Dr. Krebs was aware Plaintiff was in pain as
a result of a decaying tooth that could possibly saved by filling. As of the medical consult in

4

Dr. Krebs “reviewed and electronically signed the medical encounter note” regarding this
consultation on October 16, 2014. Id. at 2; see also ECF No. 42-3 at 22.
5

Plaintiff denies he was notified of this appointment.

6

October 2014, Dr. Krebs was aware Plaintiff was in pain, that the tooth was “totally decayed”
and that he “cannot eat on left side at all.” ECF No. 42-3 at 22. Dr. Krebs was also aware
Plaintiff had reported he “continued to sign up on dental sheet but not being seen.” Id. Dr.
Krebs apparently scheduled Plaintiff for an extraction on October 20, 2014, but Plaintiff failed to
report that day. 6 Thereafter, Plaintiff waited nearly a year after October 2014 before being seen,
by which time his tooth had decayed beyond the point of repair. 7 The delay allegedly caused
Plaintiff continuing pain and the opportunity to save the last tooth on the left side.
As noted in Formica, delay can rise to the level of an Eighth Amendment violation when
the delay results in “some substantial harm to the patient” such as a “marked exacerbation of the
prisoner’s medical condition” or “unnecessarily prolonged an inmate’s pain.” See Formica, 2018
WL 3120790, at *8; Sharpe v. S.C. Dep’t of Corr., 621 F. App’x 732, 734 (4th Cir. 2015) (“A
delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.”); Webb v. Hamidullah, 281 F. App’x 159, 166-67
(4th Cir. 2008) (“An Eighth Amendment violation only occurs, however, if the delay results in
some substantial harm to the patient.”); 8 see also Alderson v. Concordia Parish Corr. Facility,
848 F.3d 415, 422 (5th Cir. 2017) (holding “pain suffered during a delay in treatment can
constitute a substantial harm and form the basis for an award of damages.”).

6

Dr. Krebs signed off on the encounter note, which stated “I/M no show for ext.,” but did not
follow up. ECF No. 42-3 at 22.

7

While Dr. Krebs asserts Plaintiff refused the recommended extraction at his appointment in
September 2015, it is not the care provided at the 2015 appointment, but the lack of care
provided during the year prior, that is the focus of Plaintiff’s deliberate indifference claim.

8

Although these are unpublished cases and therefore not binding precedent, they are persuasive,
and in line with authority of other courts of appeals, as noted in Formica.
7

It is unclear whose responsibility it was to schedule Plaintiff’s “next visit” for a filling
following the August 2013 appointment. However, as of October 16, 2014, Dr. Krebs was on
notice of Plaintiff’s condition and that no appointment had been scheduled. Although it appears
Dr. Krebs did schedule the October 20, 2014 appointment for Plaintiff, and had no reason to
believe Plaintiff did not simply fail to attend that appointment, Plaintiff alleges he was never
informed of it. In addition, there is no evidence that Dr. Krebs followed up after the missed
appointment, despite knowledge of a condition he agreed required treatment. Therefore, a
genuine issue of material fact remains as to whether Dr. Krebs was deliberately indifferent to
Plaintiff’s serious medical need regarding his tooth. On these facts, the court agrees with the
Magistrate Judge that summary judgment is inappropriate. 9 Plaintiff is not, however, entitled to
damages for any pain or decay of his tooth after the appointment in September 2015, as he
declined the recommended treatment offered to him.

9

Although Dr. Krebs has not raised the defense of qualified immunity, the Fourth Circuit has
held “the right of prisoners to receive adequate medical care and to be free from officials’
deliberate indifference to their known medical needs” is clearly established. See Formica, at *10
n. 8 (citing Scinto v. Stansberry, 841 F.3d 219, 236 (4th Cir. 2016)).
8

3. Conclusion
Having conducted a de novo review of the Report and underlying motion and related
memoranda, and having fully considered all objections, the court adopts and incorporates by
reference the Report as explained and supplemented in this Order. Plaintiff’s § 1983 claim
contains genuine issues of material fact that preclude summary judgment; therefore, Dr. Krebs’
motion for summary judgment (ECF No. 42) is denied and this matter will proceed to trial.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
August 23, 2018

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