Nielson v. Langston et al
Filing
58
MEMORANDUM AND OPINION, ORDER OF DISMSSAL re 1 Complaint filed by Howard Nielsen. ORDERED that the Defendants motion for summary judgment dated March 25, 2011 is hereby GRANTED and the civil action is DISMISSED with prejudice. ORDERED that any and all other motions now pending in this case, specifically including but not limited to the Defendants motions to seal, are hereby DENIED. Signed by Magistrate Judge John D. Love on 5/31/2011. (gsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
HOWARD NIELSEN
§
v.
§
DR. DAVID LANGSTON, ET AL.
§
CIVIL ACTION NO. 6:09cv408
MEMORANDUM OPINION AND ORDER OF DISMISSAL
The Plaintiff Howard Nielsen, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this lawsuit complaining of alleged
violations of his constitutional rights. The parties have consented to allow the undersigned United
States Magistrate Judge to enter final judgment in the proceedings pursuant to 28 U.S.C. §636(c).
At an evidentiary hearing and in his complaint, Nielsen stated that he came into TDCJ
on July 5, 2002, and was seen by a dentist at the Gurney Unit. This dentist told him that he was
going to put him on a dental plan to get some dentures. After a number of his teeth have been pulled,
however, Nielsen now says that the prison administration is telling him that they cannot give him
dentures due to budget cuts. He states that his gums hurt and bleed and he has trouble chewing his
food, and he has acid reflux disease.
In a grievance attached to his complaint, Nielsen says that he was promised dentures
when he came into the system in 2002, and he was placed on a dental plan which required a number
of extractions. Now, he says, due to pain, bleeding, difficulty eating, cutting of the inside of his
mouth, and disfigurement, he should be able to get the dentures which were promised to him; he
contends that he should be allowed to remain on the dental plan which he was given when he came
into prison. The answer to this grievance was that there was no evidence to support his assertion,
and according to UTMB Policy W-36.4, a denture has to be approved by the DUQRC Committee
which bases its decision on several criteria. The BMI (body mass index) is of high priority with a
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BMI of 18.5 to 25 being normal. Nielsen’s BMI is 30, which is above the norm. The response also
says that most foods can be easily digested with minimal mastication and there is little likelihood
that dentures would ameliorate gastrointestinal problems.
In his Step Two grievance, Nielsen says that the Step One grievance was wrong in
saying that “no evidence exists” because he has been seen by a dentist over 25 times since entering
TDCJ. He again says that he was told that he was eligible for dentures in July of 2002, and that in
July of 2003, he was examined for “hurting teeth, see about getting dentures or partials.” A tooth
was extracted at that time. He again says that the policy in effect in 2002 should control, and
reiterates that he needs dentures. The response to this grievance says that Nielsen was received into
TDCJ in July of 2002, and at that time, inmates had to be in the system for 12 months before they
were eligible for routine treatment. His old dental records did not show that he had been given a
treatment plan for dentures, as he claimed. His first dental treatment was in July of 2003, when he
had tooth no. 1 extracted, followed in September of 2003 when he had tooth no. 16 extracted.1 The
grievance response states that none of these encounters had any mention of dentures. The policy was
changed on September 1, 2003, and only those inmates who had a documented dental treatment plan
in place, which plan included dentures, were still eligible to receive dentures under the old policy;
there was no provision for grandfathering inmates who entered the system before the policy change.
Under the current policy, the response says, inmates may still be eligible for dentures if the dentist
and a provider feel that there is a medical need for dentures. The case is then referred to the dental
utilization review committee (the DUQRC Committee) for review and approval.
After the evidentiary hearing, the Defendants Dr. David Langston and Dr. Owen
Murray were ordered to answer the lawsuit and have done so. On December 17, 2010, the
Defendants filed a motion for summary judgment limited to the issue of exhaustion, arguing that
In the Universal Tooth Numbering system, tooth no. 1 is the furthest-back tooth on the
upper right, running to tooth 16 on the upper left; tooth no. 17 is directly below no. 16, running back
to no. 32 on the lower right.
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2
Nielsen failed to exhaust his administrative remedies. Nielsen filed a response to this motion on
January 14, 2011.
On March 25, 2011, the Defendants filed a motion for summary judgment on the
merits of the case. Nielsen has filed a response to this motion, and the Defendants have filed a reply
to this response.
The Defendants’ Motion Regarding Exhaustion
In their motion for summary judgment concerning the issue of exhaustion, the
Defendants state that Nielsen received dental treatment in the form of the surgical extraction of a
tooth on December 21, 2007, from Dr. Eliasson. The next mention of dental care in the records is
a note saying that as of February 26, 2009, Nielsen did not have a current treatment plan on file. On
May 30, 2009, Nielsen submitted a sick call request in which he said that when he originally entered
TDCJ, he was told that he was eligible for dentures because of a rare disease that he had (no enamel).
He stated that he was trying to receive the dentures promised to him under the policy in effect at the
time. In response to this sick call request, the medical staff scheduled him for an appointment on
June 2, 2009, but Nielsen did not show up.
Nielsen was rescheduled, and was seen on June 8. At this time, a comprehensive
treatment plan was done by Dr. Langston, who also determined Nielsen’s plaque index, did oral
hygiene cleaning, including a demonstration of brushing and flossing, took X-rays, and provided a
fluoride rinse. He told Nielsen that tooth no. 28 would have to be extracted. Dr. Langston also told
Nielsen at that time that he did not qualify for dentures under UTMB’s policy.
Nielsen had another appointment on September 16, 2009, but failed to show up. On
October 6, 2009, he submitted a sick call request complaining that his teeth were hurting, but again
failed to show up for an appointment. He was seen the next day, at which time Dr. Langston gave
him CHX rinse, took X-rays, and extracted tooth no. 28. This is the last time that Dr. Langston is
listed in the medical records as having been Nielsen’s dentist. The Defendants state that Nielsen did
not file a grievance about the exam of June 8, 2009, or the exam of October 7, 2009; instead, the one
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grievance which Nielsen filed concerning his request for dentures was signed by him on May 31,
2009.
The Defendants argue that Nielsen never filed a grievance about Dr. Langston
denying him dentures on June 8, 2009, because the grievance which Nielsen filed was before that
date. They state that his grievance cannot apply to any earlier visit with a dentist, because the last
time that he saw a dentist before that time was on December 21, 2007, and his grievance on May 31,
2009, was well after the 15-day time limit for filing grievances. Thus, they say that Nielsen has
failed to exhaust his administrative remedies.
Nielsen’s Response to This Motion
In his response, Nielsen says that Dr. Langston was a treating dentist and Dr. Murray
was vice president of Correctional Managed Care for the University of Texas Medical Branch and
thus was responsible for the implementation and enforcement of dental policies for UTMB. He
quotes an affidavit from an individual named Albert Well, which affidavit was filed in another
lawsuit in this Court, saying that Dr. Murray has the final say in whether a patient may or may not
receive dentures, and is “at the top of the chain of command” with regard to dental issues. Thus,
Nielsen says, Dr. Langston and Dr. Murray are proper defendants in the case.
Nielsen argues that the lawsuit is being filed against the policy, and so the individuals
named are the policy maker and the person who enforced the policy. He cites Johnson v. Johnson,
385 F.3d 503, 523 (5th Cir. 2004) as saying that a grievance can sufficiently identify a person even
if it does not provide an actual name, and an Eleventh Circuit case called Switzt v. City of Wadley,
Alabama, 51 F.3d 988, 999 (11th Cir. 1995), which says that liability may be imposed due to the
existence of an improper policy or from the absence of a policy.
Nielsen states that he filed Step One and Step Two grievances clearly setting out that
his complaint concerned the policy. He says that the response to this grievance validates the fact that
he adequately put the defendants on notice as to the nature of his complaint. Nielsen also observes
that his grievance was not returned for any violation of grievance processing regulations such as the
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15-day requirement. Thus, he concludes that he has adequately exhausted his administrative
remedies.
The Defendants’ Motion for Summary Judgment on the Merits
On March 25, 2011, the Defendants filed their motion for summary judgment on the
merits. In this motion they state first that from May 24, 2005, to the present, there is no order or plan
for dentures for him. On December 18, 2007, he complained of a toothache, but failed to show up
for an appointment the next day. He was seen by Dr. Eliasson, and teeth no. 12 and 13 were
extracted. There is no indication in the record that Nielsen requested dentures during his visit.
The Defendants state that during the June 8 exam, the records show that Nielsen was
five feet six inches tall and weighed 190 pounds. He had gingivitis with inflammation and recession,
moderate material alba (deposits of food debris and micro-organisms, particularly at the gum line),
moderate calculus (a concretion on teeth) and moderate bone loss. The records do not verify
Nielsen’s complaints that he had bleeding gums, difficulty chewing, bites or cuts on the inside of
his mouth, or the inability to digest food properly. He was missing 13 teeth with plans to extract one
more. Of his remaining teeth, the Defendants state that at least 12 are in occlusion, meaning that
they come together when the mouth is closed. At this visit, Dr. Langston advised Nielsen that he did
not qualify for dentures under UTMB guidelines.
As part of the motion for summary judgment, both Dr. Langston and a dentist named
Dr. Billy Horton, the Dental Director for the University of Texas Medical Branch - Correctional
Managed Care, have furnished affidavits stating that Nielsen did not meet the criteria for dentures.
Dr. Horton explains that since September 1, 2003, TDCJ has had a policy of providing dentures for
inmates when “medically necessary,” meaning that dentures are provided when the health of the
patient would otherwise be adversely affected. The policy instructs dentists to monitor the
nutritional status of patients by tracking weight trends for those who may have compromised
masticatory functions. As part of this monitoring, the Body Mass Index (BMI) is used as a tracking
methodology.
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According to the policy, a BMI from 18.5 to 25 is considered normal, and patients
with a BMI of 25 or lower which is trending downward, or a patient who is 10 percent or more
underweight relative to their ideal body weight, should be referred to the patient’s treating physician
for consultation. If the physician determines that the patient’s nutritional status is compromised,
special diets such as a mechanically blended diet may be considered. Dental prostheses for patients
with compromised masticatory function should be considered following initiation and follow-up
evaluation of the effectiveness of the special diet. CMC Policy E-36.5 provides for a dental
utilization / quality review committee to address concerns about the dental care provided to inmates.
Dr. Horton states that in his opinion, dentures for Nielsen were “completely
unnecessary.” He notes that the medical records contain no indication that Nielsen complained of
bleeding gums, difficulty chewing, bites or cuts on the inside of the mouth, or inability to digest food
in either of his visits to Dr. Langston. In the June 8, 2009 visit, Nielsen’s complaints concerned gum
disease which had been caused by poor brushing and flossing in the past rather than the lack of
dentures. Nielsen had a BMI of 31, well above the healthy range of 18.5 to 25, and is not losing
weight; since the filing of the lawsuit, he has been prescribed a “Diet for Health” and a medication
called Zantac to help him with acid reflux. Dr. Horton concludes that there is no medical necessity
for providing Nielsen with dentures.
Dr. Langston’s affidavit says that he has examined Nielsen’s medical records going
back to May of 2005, and none of these records contain an order or plan for dentures; he states that
he does not have access to records older than that. He describes his visits with Nielsen and says that
the medical records show that dentures were not necessary.
Policy E-3.64 and E-3.65 provide that if a dentist or physician completes a form
stating that the patient has a medical need for dentures, the recommendation is forwarded to the
committee for review; however, in this case, no unit dentist or physician ever completed such a form.
The Defendants argue that they were not deliberately indifferent to Nielsen’s medical
needs because the evidence showed that dentures were not medically necessary. In addition, they
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state that Dr. Murray has never seen Nielsen and cannot be held liable on a theory of respondeat
superior, nor was Nielsen’s request for dentures ever brought to Dr. Murray’s attention prior to the
filing of the lawsuit.
Next, the Defendants contend that they are entitled to qualified immunity from claims
for monetary damages because they acted in an objectively reasonable manner. They further assert
that Nielsen is not entitled to injunctive relief because there was no constitutional violation. Finally,
the Defendants maintain that any claim which Nielsen may raise which accrued before September
2, 2007 are barred by the statute of limitations.
Nelson’s Response to the Motion
In his response to the motion for summary judgment, Nielsen says that in 2002, he
was seen by a dentist at the Gurney Unit who claimed that he put Nielsen on a dental plan to obtain
dentures. After he had a number of teeth extracted, however, he was told that he could not be
provided with the dentures that he had been promised.
Nielsen contends that he is not filing a complaint regarding an office visit or
challenging the competence of a dentist, but rather a complaint with regard to the policy itself, which
he says was changed after treatment began. He says that deliberate indifference may be shown by
proving a policy of deficiencies in staffing or procedures such that the inmate is effectively denied
access to adequate medical care, and says that because of their positions, both Dr. Murray and Dr.
Langston may be subjected to injunctive relief in the form of an order to provide him with dentures.
After setting out the legal standards applicable to injunctions, Nielsen says that he was
promised dentures and that but for this promise, he would not have consented to the extraction of
his teeth. He says that his Eighth Amendment claim is based on the fact that he has toothaches and
cuts and sores in his mouth, and cites a Second Circuit case called Chance v. Armstrong, 143 F,3d
698 (2nd Cir. 1998), in which the court held that a cognizable claim of inadequate dental care can
be based on various factors including pain or the inability to engage in normal activities. In that
case, the Second Circuit reversed a holding by the district court that the plaintiff had failed to state
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a claim upon which relief could be granted, but noted that “it may become clear, at summary
judgment or some later stage in the litigation, that these claims are not adequately supported.”
Next, Nielsen asserts that a “conflict of interest” may exist with regard to the
Defendants’ affidavits. He points to an article in the Prison Legal News, which he styles as a
“reputable publication concerning prison litigation,” stating that according to U.S. District Judge
William Wayne Justice, the prison health care system was “constitutional – but just barely.” Nielsen
also cites the Prison Legal News as saying that “a lack of funding has made it impossible to repair
either the building or the system,” that following the settlement in the Ruiz prison reform case, the
University of Texas Medical Branch and the Texas Tech Health Science Center were given a fixed
annual budget for prison health care and told that thy could keep what they did not spend, and prison
physicians were given bonuses for saving money and thus “rewarded for denying prisoners needed
care.” He says that the Prison Legal News also reported that the Texas State Auditors Board
concluded in 2004 that the state’s correctional managed health care committee was plagued with
conflicts of interest, and that because of these factors, surgery and treatment were often postponed
and cheaper drugs were used.
Nielsen seeks to distinguish cases on deliberate indifference cited by the Defendants
by arguing that his claim is not regarding dissatisfaction with treatment, but over the fact that the
policy was changed during his treatment, which stopped the treatment that he was receiving. He says
that Wells’ affidavit, filed in another lawsuit in this Court, says that the policy was changed for
budgetary reasons and states that if the defendants present the prothesis policy in effect in 2002 and
his dental records from the same time, it will prove all of his allegations.
Nielsen cites Fifth Circuit denture cases such as Huffman v. Linthicum, 265
Fed.Appx. 162, 2008 WL 341573 (5th Cir., Feb. 6, 2008); Vasquez v. Dretke, 226 Fed.Appx. 338
2007 WL 756455 (5th Cir., March 9, 2007); and Scribner v. Linthicum, 232 Fed.Appx. 395, 2007
WL 1228552 (5th Cir., April 26, 2007). In Huffman, the petitioner alleged that he suffered from
“intense physical pain, swollen gums, weight loss, disfigurement and stomach pain” due to the
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failure to provide him with dentures. The district court dismissed the claims as frivolous without
ordering an answer, but the Fifth Circuit reversed, holding that the plaintiff’s claims were not
“indisputably meritless.” After the reversal, the district court ordered the defendants to answer, and
a motion for summary judgment was filed.
After reviewing this motion and the summary judgment evidence, the district court
determined that Huffman had not met the criteria for receiving dentures and that the defendants had
not been deliberately indifferent to his serious medical needs. The district court also determined that
the TDCJ denture policy was not so deficient as to act as a deprivation of the plaintiff’s
constitutional rights. Consequently, the district court granted the motion for summary judgment and
dismissed the lawsuit. No appeal was taken from this dismissal. See Huffman v. Linthicum, civil
action no. 4:06cv308 (S.D.Tex., dismissed January 29, 2009).
In Vasquez v. Dretke, the plaintiff stated that because he has no dentures, he suffers
from difficulty eating, headaches, disfigurement, severe pain, bleeding in his mouth, and blood in
his stool. The district court dismissed the claims as frivolous or for failure to state a claim upon
which relief may be granted, but the Fifth Circuit reversed. In so doing, the Fifth Circuit stated as
follows:
As the dentists have not yet responded to Vasquez’s complaint, it is not apparent
beyond doubt that Vasquez can prove no set of facts consistent with his claim that
would allow him relief against the dentists; it is possible that the dentists knew of and
deliberately disregarded Vasquez’s alleged serious medical need. Thus, Vasquez’s
claims against Wells and Collins are not frivolous, nor appropriate for dismissal.
[citation omitted]
In so ruling, we express no opinion on the ultimate merits of the case. The
Magistrate Judge may determine at summary judgment that no Eighth Amendment
violation occurred, for several reasons. For example, it is unclear whether Collins
and Wells were aware of all of Vasquez’s alleged symptoms. In addition, even if
they knew of Vasquez’s complaints, it is possible that in the dentists’ medical
judgment, dentures would not have helped Vasquez. With only the statements of
Vasquez, however, we cannot say the cause is frivolous, and that is all we hold.
After the remand, the district court set the case for trial but the plaintiff did not appear, and so the
case was dismissed. No appeal was taken. See Vasquez v. Dretke, civil action no. 6:05cv51
(E.D.Tex., dismissed August 13, 2007).
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Unlike Huffman and Vasquez, Scribner v. Linthicum is a summary judgment case.
There, the plaintiff sued the director of medical services alleging that she was deliberately indifferent
to his serious medical needs. The district court dismissed the case on summary judgment, holding
that there was no evidence that the medical director was aware of Scribner’s complaints, but the Fifth
Circuit noted that Scribner had stated that he wrote to the director about his problems, and she did
not deny receiving the letter. In addition, there was evidence to show that the defendant had given
final approval to the policy. In reversing the case, however, the Fifth Circuit expressed no opinion
on the ultimate validity of Scribner’s complaint, and noted that the contours of the prison policy and
Scribner’s need for dentures had not been completely developed by either party. Following the
remand, the plaintiff filed a motion to dismiss the lawsuit, acknowledging that he was seeking only
injunctive relief and had been released from TDCJ, so his claims were moot. This motion was
granted and the lawsuit was dismissed without prejudice. See Scribner v. Linthicum, civil action no.
1:04cv409 (E.D.Tex., dismissed August 2, 2007).
Legal Standards and Analysis
On motions for summary judgment, the Court must examine the evidence and
inferences drawn therefrom in the light most favorable to the non-moving party; after such
examination, summary judgment is proper if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law. Securities and
Exchange Commission v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1994); General Electric Capital Corp.
v. Southeastern Health Care, Inc., 950 F.2d 944, 948 (5th Cir. 1992); Rule 56(c), Fed. R. Civ. P.
To avoid summary judgment, the non-moving party must adduce admissible evidence
which creates a fact issue concerning existence of every essential component of that party's case;
unsubstantiated assertions of actual dispute will not suffice. Thomas v. Price, 975 F.2d 231, 235 (5th
Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Fifth Circuit has stated
that once the moving party has met its burden, the non-movant must direct the court's attention to
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admissible evidence in the record which demonstrates that it can satisfy a fair-minded jury that it is
entitled to a verdict in its favor. ContiCommodity Services, Inc. v. Ragan, 63 F.3d 438, 441 (5th Cir.
1995).
Summary judgment should be granted when the moving party presents evidence
which negates any essential element of the opposing party's claim, including a showing that an
essential element of the opposing party's claim is without factual support. First American Bank &
Trust of Louisiana v. Texas Life Ins. Co., 10 F.3d 332, 334 (5th Cir. 1994). The granting of
summary judgment is proper if the movant demonstrates that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law. Caldas & Sons v. Willingham,
17 F.3d 123, 126 (5th Cir. 1994). Once the movant makes this showing, the burden shifts to the
non-movant to come forward with evidence sufficient to establish the existence of a genuine issue
of material fact. Caldas, 17 F.3d at 126-27.
Although the Court must draw all inferences in favor of the party opposing the
motion, an opposing party cannot establish a genuine issue of material fact by resting on the mere
allegations of the pleadings. Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir. 1991); see also
Gordon v. Watson, 622 F.2d 120 (5th Cir. 1980) (litigants may not oppose summary judgment
through unsworn materials). Similarly, a bald allegation of a factual dispute is insufficient, in itself,
to create a genuine issue of material fact. Recile, 10 F.3d at 1097 n.15. A non-movant cannot
manufacture a factual dispute by asking the Court to draw inferences contrary to the evidence.
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In short, a
properly supported motion for summary judgment should be granted unless the opposing party
produces sufficient evidence to show that a genuine factual issue exists. Hulsey, 929 F.2d at 170,
citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The Fifth Circuit has stated that once the defendants have shifted the burden to the
plaintiff by properly supporting their motion for summary judgment with competent evidence
indicating an absence of genuine issues of material fact, the plaintiff cannot meet his burden by some
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metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions,
or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). The court added that “summary judgment is appropriate in any case where
critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in
favor of the non-movant.” Little, 37 F.3d at 1075.
The movant has the initial burden of proof to demonstrate the lack of a genuine issue
of material fact and the appropriateness of judgment as a matter of law. John v. State of Louisiana
Bd. of Trustees for State Colleges and Universities, 757 F.2d 698, 708 (5th Cir. 1985). Once the
movant has done so, the burden then shifts to the plaintiff, who must identify specific evidence in
the record and articulate the precise manner in which that evidence supports his claims; the district
has no duty to sift through the record in search of evidence to support a party’s opposition to
summary judgment. Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996). As for material facts
on which the plaintiff will bear the burden of proof at trial, he must come forward with evidence
sufficient to enable him to survive a motion for directed verdict at trial. Stults, 76 F.3d at 656; see
also Johnson v. Deep East Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (non-movant must identify specific evidence in the record and articulate the manner in
which that evidence supports that party’s claim).
Application of the Standards to the Facts
In this case, the evidence shows that Nielsen received dental care dating back to 2002,
but there is no evidence that a written dental plan to provide him dentures was ever prepared The
response to the Step Two grievance attached to Nielsen’s complaint specifically say that his dental
records contain no indication that a denture plan was ever done, and Nielsen does not dispute this;
he says only that the dentist he saw in 2002 promised him dentures and that he was told at that time
that he qualified for dentures. In addition, a review of the records dating back to 2005 contains no
mention of a plan for dentures. Because Nielsen did not have a plan for dentures in place at the time
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that the policy changed, in September of 2003, he is not entitled to have the pre-2003 policy applied
to his case; the verbal promises which he received prior to that time are not sufficient.
Nielsen argues that the records of the dental plan from 2002 will show that he
qualified for dentures under that plan, but the relevant question is whether a dental plan was ever
created for him to actually receive dentures, such plan being in existence when the policy changed
in September of 2003. The evidence shows that regardless of what Nielsen may have been told, no
such plan was ever created.
The Defendants argue that to the extent that Nielsen seeks to rely on these 2002
promises, his claim is also barred by the statute of limitations. The limitations period begins to run
on the date that the action arose, for all prison claims arising after September 1, 1987. See Burrell
v. Newsome, 883 F.2d 416, 420 (5th Cir. 1989). While any claims that Nielsen may raise for
incidents occurring in 2002 and 2003 are in fact barred by limitations, Nielsen specifically
disclaimed any intent to raise such claims; rather, he said that his lawsuit was focused on the policy
itself.
With regard to Nielsen’s claims concerning the policy, the evidence shows that
Nielsen was denied dentures because he did not meet the criteria set out by TDCJ policy, which
requires a finding that the health of the patient would otherwise be adversely affected. To assist in
making this decision, the inmate’s body mass index is used as a tracking methodology. A BMI from
18.5 to 25 is considered normal, and so inmates with a BMI of 25 or lower which is trending
downward, or an inmate who is 10 percent or more underweight relative to his ideal body weight,
should be referred to the treating physician for consultation. If the physician determines that
nutritional status is compromised, a special diet such as a blended diet can be considered.
In this case, the evidence showed that Nielsen had a BMI ranging between 30 and 31,
which is well above the normal range of 18.5 to 25. Neither his treating physician nor his treating
dentist ever concluded that his nutritional status was compromised as a result of the lack of dentures.
Thus, no request for dentures was ever sent to the dental utilization / quality review committee.
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The medical records show that Nielsen received treatment for his dental issues,
including completion of a treatment plan, measurement of the plaque index, providing oral hygiene
instructions, taking X-rays, and extractions when necessary. The dental exams showed that Nielsen
had sufficient occluded teeth to chew and that the problems of which he complained at the visit on
June 9, 2009, were caused by poor dental hygiene rather than a lack of dentures. Thus, Dr. Langston,
who examined and treated Nielsen, and Dr. Horton, who reviewed Nielsen’s medical records, both
determined that dentures were not medically necessary.
While Nielsen disagrees with this determination, the Fifth Circuit has stated that
simple disagreement with the medical treatment received or a complaint that the treatment received
has been unsuccessful is insufficient to set forth a constitutional violation. Johnson v. Treen, 759
F.2d 1236, 1238 (5th Cir. 1985); Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997). In order
to prevail on an Eighth Amendment claim regarding medical care, the plaintiff must show more than
a disagreement, or that the defendants were negligent; instead, the Fifth Circuit has explained that
deliberate indifference to a convicted inmate's serious medical needs could state a civil rights
violation, but a showing of nothing more than negligence does not. Norton, 122 F.3d at 291.
Furthermore, malpractice alone is not grounds for a constitutional claim. Varnado
v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). Negligent or mistaken medical treatment or judgment
does not implicate the Eighth Amendment and does not provide the basis for a civil rights action.
Graves v. Hampton, 1 F.3d 315, 319-20 (5th Cir. 1993). The Fifth Circuit has held that the fact that
medical care given is not the best that money can buy, and the fact that a dose of medication may
occasionally be forgotten, does not amount to deliberate indifference to serious medical needs.
Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992).
More pertinently, the Fifth Circuit has held that an inmate who had been examined
by medical personnel on numerous occasions failed to set forth a valid showing of deliberate
indifference to serious medical needs. Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). It
should be noted in this regard that medical records of sick calls, examinations, diagnoses, and
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medications may rebut an inmate's allegations of deliberate indifference to serious medical needs.
Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
In Domino v. TDCJ-ID, 239 F.3d 752 (5th Cir. 2001), a inmate who was a psychiatric
patient expressed suicidal ideations and the psychiatrist returned him to his cell after a five-minute
examination; the inmate committed suicide two and a half hours later. The Fifth Circuit, in reversing
a denial of summary judgment by the district court, stated as follows:
Deliberate indifference is an extremely high standard to meet. It is indisputable that
an incorrect diagnosis by prison medical personnel does not suffice to state a claim
for deliberate indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
Rather, the plaintiff must show that the officials "refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical needs." Id.
Furthermore, the decision whether to provide additional medical treatment "is a
classic example of a matter for medical judgment." Estelle v. Gamble, 429 U.S. 97,
107 (1972). And, "the failure to alleviate a significant risk that [the official] should
have perceived, but did not," is insufficient to show deliberate indifference. Farmer
v. Brennan, 511 U.S. 825, 838 (1994).
Domino, 239 F.3d at 756; see also Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
Here, the medical records show that Nielsen was examined numerous times for his
complaints of dental problems, and he received treatment as set forth above. To the extent that
Nielsen is challenging the actual treatment which he received, he has not shown that the dental
personnel refused to treat him, ignored his complaints, or intentionally treated him incorrectly; on
the contrary, his complaint is that he believed that he needed dentures, while the licensed medical
professional who examined him believed that he did not need dentures and he did not meet the
criteria set out in the TDCJ denture policies. Nielsen has not shown that his disagreement rises to
the level of deliberate indifference to his serious medical or dental needs, and so his claim on this
point is without merit.
Huffman and Vasquez, cited by Nielsen, both involve dismissals of lawsuits as
frivolous, prior to service of process or receipt of an answer from the defendants. In both of those
cases, the Fifth Circuit expressed no opinion as to the ultimate merits of the claims; in Vasquez, the
Fifth Circuit specifically left open the possibility that the case could be found meritless at the
15
summary judgment stage. In the present case, the Court did not find Nielsen’s claims to be frivolous,
but required the Defendants to answer, and the case is now at the summary judgment stage.
In Scribner, which was a summary judgment case, the Fifth Circuit concluded that
the contours of the policy had not been adequately developed, and reversed on that basis; the
appellate court specifically expressed no opinion on the ultimate merits of the claims. In the present
case, the Defendants’ motion for summary judgment included a copy of the policy at issue, as well
as an affidavit from Dr. Billy Horton discussing this policy. Nielsen does not show nor even allege
that the contours of the policy have not been adequately developed on summary judgment.
This is particularly important because Nielsen specifically says that he is challenging
the validity of the policy itself, indicating that it was put into effect for budgetary reasons and that
the policy itself is unconstitutional in that it results in the infliction of cruel and unusual punishment.
No Fifth Circuit case has yet addressed the validity of the TDCJ denture policy. In Steele v. Thaler,
civil action no. 4:09cv4076, 2011 WL 739524 (S.D.Tex., February 22, 2011), the Southern District
of Texas stated as follows:
Plaintiff, however, has not shown that his constitutional rights were violated by the
application of this policy. Moreover, no federal court in Texas has yet held dental
policy E-36.4 is unconstitutional; “on the contrary, the Southern District has
concluded that the policy is not unconstitutional, nor is the policy so deficient that
it acts as a deprivation of constitutional rights.” Gibson v. Langston, civil action no.
6:10cv136, 2011 WL 42897 at *6 (E.D.Tex, Jan. 6, 2011) (agreeing with the
opinions in Huffman v. Linthicum, civil action no. H-06-0308, 2009 WL 243000
(S.D.Tex., Jan. 29. 2009) (opinion after remand) and Foxworth v. Khoshdel, civil
action no. H-07-3944, 2009 WL 3255270 (S.D.Tex., Sept. 28, 2009) that the denture
policy is not unconstitutional.
The Court is not insensitive to plaintiff’s claims and sympathizes with the frustration,
inconvenience and discomfort that he endures without dentures. Nevertheless,
plaintiff has not shown that the policy of providing dentures only when there is a
medical necessity amounts to a repudiation of his constitutional rights. At best, he
has shown that he disagrees with the conclusion that there is no medical necessity in
his case; his disagreement with that assessment does not provide a basis for a
meritorious constitutional claim.
As in Gibson, this Court agrees with the Southern District that the denture policy
itself is not unconstitutional and does not operate as a repudiation of inmates’ constitutional rights.
While the policy may be more restrictive in its definition of what constitutes a medical need than
16
Nielsen believes appropriate or proper, this by itself does not render the policy unconstitutional, nor
does the fact that Nielsen does not qualify for dentures under the current policy, but might do so
under a different policy.
Furthermore, Nielsen has not shown that the denial of dentures to him, pursuant to
the policy, constituted deliberate indifference to his medical needs. As noted above, both Dr.
Langston and Dr. Horton determined that he did not need dentures; in fact, Dr. Horton’s affidavit
opined that dentures were “completely unnecessary.” Nielsen’s complaint in essence revolves
around his disagreement with this assessment, and as such, he has failed to show a constitutional
violation.
The relief sought by Nielsen is primarily injunctive; he says that “I want my dentures,
and all my legal fees and filing fees paid for.” In order to obtain injunctive relief from the state or
from state officials acting in their official capacities, a plaintiff must prove a deprivation of his
constitutional rights pursuant to an official state policy. Kentucky v. Graham, 473 U.S. 159, 165-67,
105 S.Ct. 3099 (1985); Grandstaff v. City of Borger, 767 F.2d 161, 169 (5th Cir. 1985). In this case,
Nielsen has not shown a deprivation of his constitutional rights pursuant to an official state policy,
but only that he disagrees with the determination of the TDCJ dental personnel that he did not have
a medical necessity for dentures. This is not sufficient to show entitlement to injunctive relief.
Nielsen asserts that a “conflict of interest” exists with regard to the Defendants’
affidavits because according to an article in a magazine called the Prison Legal News, the Texas
Correctional Managed Health Care program was placed on a fixed annual budget, and the
administrators could “keep what they did not spend.” It is hardly unusual for state agencies to have
annual budgets, or to seek to control costs. Nielsen has failed to show that any alleged “conflict of
interest” exists which is sufficient to render inadmissible the affidavits attached to the Defendants’
motion for summary judgment. This contention is without merit.
17
Finally, the Defendants invoke the doctrine of qualified immunity. However, as the
Fifth Circuit has explained, neither sovereign nor qualified immunity prevent a prisoner from
pursuing declaratory and injunctive relief. Mayfield v. Texas Department of Corrections, 529 F.3d
599, 606 (5th Cir. 2008). Because Nielsen seeks only injunctive relief, together with an award of
court costs, the doctrine of qualified immunity does not apply.
Conclusion
The Court has carefully examined the record in this cause, including all of the
Plaintiff's pleadings and documents, the Defendants' motion for summary judgment, the Plaintiff’s
response thereto, all of the summary judgment evidence submitted by the parties, and all other
documents and records in the case. Upon such review, the Court has determined that there are no
disputed issues of material fact and that the Defendants are entitled to judgment as a matter of law.
from suit. The Defendants’ motion for summary judgment on the merits on the claims should be
granted; the question of exhaustion of administrative remedies need not be addressed. It is
accordingly
ORDERED that the Defendants’ motion for summary judgment dated March 25,
2011 (docket no. 46) is hereby GRANTED. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with
prejudice. The plaintiff Howard Nielsen having objected to the sealing of his records, stating that
he does not need protection for his personal medical information and wishes that these be made part
.
of the public record in the case, it is further
ORDERED that any and all other motions now pending in this case, specifically
including but not limited to the Defendants’ motions to seal, are hereby DENIED.
So ORDERED and SIGNED this 31st day of May, 2011.
___________________________________
JOHN D. LOVE
18
UNITED STATES MAGISTRATE JUDGE
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