Turner v. Ruffin et al

Filing 37

MEMORANDUM OPINION. Signed by District Judge Claude M. Hilton on 6/2/2017. (rban, )

IN THE UNITED STATES DISTRICT COURT FOR T
EASTERN DISTRICT OF VIRGINIA
: • CLERK. U.S. DISTRICT COURT
•"

ALEXANDRIA, VIRGWIA

Alexandria Division

Ronney Earl Turner,
Plaintiff,
l:16cv510(CMH/JFA)

V.

Wyatt Ruffin and Mary Mayhue,
Defendants.
MEMORANDUM OPINION

Ronney Earl Turner, a Virginia inmate proceeding uro se, filed this civil rights action
pursuant to 42 U.S.C. § 1983, alleging that he suffered deliberate indifference to his serious

medical needs that resulted in his loss of a tooth. The matter is presentlybefore the Court on

Motions for Summary Judgment filed separately by defendants Wyatt Ruffin, D.D.S., and Mary
Mayhue, RDA. Also pending are a Motion for Default Judgment by the plaintiff and a Motion
for Leave to File Out of Time Response by defendant Mayhue. For the reasons which follow,

plaintiffs Motion for Default Judgment will be denied, defendant Mayhue's Motion for Leave to
File Out of Time Response will be granted, and both Motions for Summary Judgment will be
granted.

1. Background
Plaintiff, an inmate confined at Sussex II State Prison ("Sussex 11"). commenced this

lawsuit in May, 2016, alleging that he requested dental service for a tooth from which a filling
had fallen out on December 18, 2014. Plaintiff saw dentist Wyatt Ruflln on February 20, 2015,

and allegedly was scheduled for a restorative procedure on the tooth. However, plaintiff was not
seen again until August 3, 2015, some 24 weeks later, and by then, the tooth was unsaivageable
and had to be extracted. Plaintiff named Dr. Ruffm and Mary Mayhue. a registered dental

assistant ("RDA") as defendants, and as relief he sought monetary damages and injunctive relief

mandating improved dental carefor Virginia prisoners.'
On December 13,2016, defendant Dr. Ruffin filed a Motion for Summary Judgment with
a supporting memorandum of law and exhibits, and supplied plaintiff with the notice required by
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Civ. R. 7(J). (Dkt. No. 17 -20)

Plaintiff filed a response in opposition to the motion on January 11,2017. (Dkt. No. 28)
Meanwhile, on December 19,2016, plaintiff moved for the entry of a default judgment

againstdefendant Mayhue, on the ground that she had failed to file an answer or other responsive
pleading in accordance with the Notice of Lawsuit and Request for Waiver of Service. (Dkt. No.

21) Two days later, Mayhue, through counsel, filed her Opposition to Motion for Entry of

Default Judgment. (Dkt. No. 23) In it, counsel explained that he had been retained by the
Virginia Division of Risk Management ("DRM") to represent Dr. Ruffin, and a Motion for
Summary Judgment was timely filed on Ruffin's behalf. However, at the time the Notices of

Lawsuit were issued, Mayhue was no longer employed at Sussex II, and DRM accordingly sent
her the Notice of Lawsuit along with a Former Employee's Request for Coverage. Due to a
miscommunication Mayhue did not receive the documents until December 20,2016, and at that

time counsel was appointed to represent her as well as Dr. Ruffin. The following day counsel
filed both the Opposition to Motion for Entry of default as well as a Motion for Leave to File an

'In a second claim, plaintiff alleged in conclusory fashion that his Eighth Amendment right to
adequate dental care was violated "from 2014 to 2015, because his treatment was limited to the
pulling of teeth that could have been easily saved," Compl. at 11, and in addition to dentist Ruffin
he named as a defendant A. David Robinson, the Chief of Corrections Operations for the Virginia
Department ofCorrections. Plaintiffwas directed to particularize and amend his allegations as to this
claim, and in the amended complaint (Dkt. No. 10) the claim was abandoned. Defendant Robinson
accordingly was dismissed fi-om the lawsuit.

Out of Time Response to the Amended Complaint. (Diet. No. 24) Under these circumstances,

and mindful both that the Fourth Circuit Court of Appeals strongly favors a policy that cases be

decided on the merits, United States v. Shaffer Equip. Co.. 11 F.3d 450 453 (4th Cir. 1993), and
that the minimal delay in Mayhue's filing of a responsive pleading caused plaintiff to suffer no
prejudice, Wilson v. Turner. 2014 WL 4426126 (D. Md. Sept. 2, 2014), defendant Mayhue's

Motion for Leave to File an Out of Time Response will be granted, and plaintiffs Motion for
Entry of Default Judgment against Mayhue will be denied.

On January 30, 2017, Mayhue filed a Motion for Summary Judgment with a supporting
memorandum, and provided plaintiff with the appropriate Roseboro notice. (Dkt. No. 29-31)

Plaintiffsubmitted a response in opposition to the motion on February 24,2107. (Dkt. No.33)
Accordingly, this matter is now ripe for disposition.
II. Standard of Review

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the movingparty is entitled tojudgment as a matter of

law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that judgment on the
pleadings isappropriate. SeeCelotex Corp. v.Catrett. 477 U.S.317,323 (1986)(moving partybears
the burden of persuasion on all relevant issues). To meet that burden, the moving party must
demonstrate that no genuine issues of material fact are present for resolution. Id at 322. Once a
moving party has met its burden to show that it is entitled to judgment as a matter of law, the burden
then shifts to the non-moving party to point out the specific facts which create disputed factual
issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986); Matsushita Electrical Industrial

Co. V. Zenith Radio Corp.. 475 U.S. 574,587 (1986). In evaluating a motion for summaryjudgment,

a district court should consider the evidence in the light most favorable to the non-moving party and

draw all reasonable inferencesfrom those facts in favor ofthat party. United States v. Diebold. Inc..
369 U.S. 654,655 (1962). Those facts which the moving party bears the burden ofproving are facts
which are material. "[T]he substantive law will identify which facts are material. Only disputes over

facts which might affect the outcome of the suit under the governing law will properly preclude the
entry ofsummaryjudgment." Anderson. 477 U.S. at 248. An issue ofmaterial fact is genuine when,
"the evidence ... create[s] [a] fair doubt; wholly speculative assertions will not suffice." Ross v.

Communications Satellite Corp.. 759 F.2d 355,364 (4th Cir. 1985). Thus, summary judgment is
appropriate only where no material facts are genuinely disputed and the evidence as a whole could
not lead a rational fact finder to rule for the non-moving party. Matsushita. 475 U.S. at 587.
III. Undisputed Facts

The following material facts are undisputed. Dr. Ruffin is employed by the Virginia
Department of Corrections ("VDOC") and is the only dentist at Sussex II. Dkt. No. 19, Ex. 1,
Ruffin Aff.

1,3. The facility houses approximately 1250 inmates, and in his five-day

workweek Dr. Ruffin sees about 50 inmates, including all new inmates within 30 days of their

arrivals. The average wait time for routine dental servicescan span months, depending on the
demands on Dr. Ruffin's time and the specific nature of the required services. Id., H3.
At a scheduled appointment with Dr. Ruffin on February 20,2015, plaintiff complained
of sensitivity in tooth # 21. Prior to the appointment. Dr. Ruffm had reviewed plaintiffs dental
records, and noted that the problem with plaintiffs tooth # 21 had been ongoing for many years.

Dentists who had preceded Dr. Ruffin at Sussex 11 had filled tooth # 21 with DO Amalgam in

October, 2006, and had refilled it with the same substance in February, 2010 and October, 2011.

In March, 2013, after his arrival at Sussex II, Dr. Ruffin saw plaintiff and measured a 9-mm

pocket between plaintiffs tooth U20 and tooth #21, which indicated advanced periodontal
disease. In June, 2013, Dr. Ruffin replaced the earlier restoration of tooth #21 with a DO
Composite. Id.. ^ 4.

At plaintiffs February 20, 2015 appointment. Dr. Ruffin determined that recurrent decay
had occurred in tooth # 21 due to poor oral hygiene, and that plaintiff should return for a
restorative procedure. Until the decay was removed Dr. Ruffin would be unable to determine if

the tooth could be restored or if it would require extraction. IdL, ^
Plaintiff returned to the dental clinic on August 3,2015. When Dr. Ruffm removed the

decay from tooth # 21 he saw that it had a carious exposure, or uncoveringof the tooth pulp, and
accordingly he recommended extraction of the tooth. His determination that the tooth could not

be salvaged was based on three factors: (1) the carious exposure; (2) there was insufficient tooth
structure remaining to hold a filling; and (3) there was advanced bone loss associated with the
tooth. Dr. Ruffm informed plaintiff of these findings and extracted the tooth. Id,, 6.

During the period between plaintiffs appointments on February20 and August 3,2015,
he never requested any pain medication or emergency or urgent dental treatment fi-om Dr. Ruffin.
Id., ^ 7. Dr. Ruffin attests that "[i]t takes years for a tooth to decay to the terrible condition in
which [he] found plaintiff's tooth #21," and the "six-month wait in between plaintiff's February
2015 appointment and his return to the clinic on August 3,2015 did not determine the final
outcome of the extraction of tooth #21." Id, ^ 8.
Defendant Mayhue was employed at Sussex II as a Registered Dental Assistant ("RDA")

during the eventsat issue here. In that role it was her responsibility to schedule inmates for

dental appointments in accordance with the VDOC Operating Procedures. Dkt. No. 31, Ex. 1,
Mayhue Aff.

1, 3. Under those guidelines, requests for routine dental treatment are to be

scheduled in the chronological order in which they are received. Id, ^ 3." After plaintiff saw Dr.
Rufifin on February 20,2015, Mayhue scheduled him for routine treatment in that manner, as

restoration and extraction of teeth areconsidered routine. Id., ^ 4. Mayhue had no responsibility
with regard to the hiring or assignment of dental personnel at Sussex II. Id., H5.
Plaintiffsubmitted responses to both summary judgment motions. (Dkt. No. 28,33)

Neither was filed under penalty of perjury. Attached as an exhibit to the response to Dr. Ruffin's
motion is plaintiffs affidavit, which states in its entirety:
I Ronney Earl Turner states under the penalty or peijury: that on
February 20, 2016 Mary Mayhue xrayed my tooth # 21 and after
Dentist Ruffin examine [sic] it, he told me that Mary Mayhue will
schedule me for fillings soon.
Dkt. No. 28, Ex. 2.^

-VDOC Operating Procedure 720.6, entitled Dental Services, establishes a four-tier classification

system to prioritize inmates' dental needs. Class 2, the moderate priority level, includes both
restorations andextractions. Dkt. No. 19, Ex. 2. Italso provides that "[rjequests for routine dental
treatment will be scheduled in the chronological order in which they are received." Id

^As a general rule, the non-moving party may not defeat a properly-supported summaiyjudgment
motion by simply substituting the "conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit." Luian v. Nat'l Wildlife Fed'n. 497 U.S. 871, 888 (1990).
Even where the non-moving party in such a situation is a gro se prisoner entitled to liberal
construction of his pleadings, a "declaration under oath ... is not enough to defeat a motion for
summary judgment. He has to provide a basis for his statement. To hold otherwise would render
motions for summaryjudgment a nullity." Campbell-El v. Dist. ofColumbia. 874 F.Supp. 403,406
(D.C. 1994). Here, however, even if the substance of plaintiffs affidavit is considered, defendants
are entitled to the summary judgments they seek.

IV. Analysis

To establish an Eighth Amendment claim for denial of medical care, a plaintiff must
show that jail officials were deliberately indifferent to a serious medical need. Estelle v. Gamble.

429 U.S. 97, 105 (1976); Staples v. Va. Deo't of Corr.. 904 F.Supp. 487, 492 (E.D.Va. 1995).
To establish that poor or inadequate medical treatment rose to the level of a constitutional

violation, a plaintiffmust show that he suffered "acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs." Id. at 105: see also Staples v. Va.

Dep't of Corr.. 904 F. Supp. 487,492 (E.D. Va. 1995). To do so, plaintiff must prove two

distinct elements. First, he mustshow that he suffered from a sufficiently serious medical need.
See, e.g.. Cooperv. Dvke. 814 F.2d 941, 945 (4th Cir. 1987) (determining that intensepain from
an untreated bullet wound is sufficiently serious); Loe v. Armistead. 582 F.2d 1291 (4th Cir.

1978) (concluding that the "excruciating pain" of an untreated broken arm is sufficiently serious).
Second, he must establish that the defendant was deliberately indifferent to that serious medical

need. Under this second prong, mere negligence or even malpractice is not enoughto state an

Eighth Amendment violation; instead, plaintiffmustshow that the defendant was deliberately
indifferent "by either actual intent or reckless disregard," Estelle. 429 U.S. at 106; Daniels v.

Williams. 474 U.S. 327, 328 (1986); Miltier v. Beom. 896 F.2d 848, 851 (4th Cir. 1990); that
is, that the defendant's actions were "[s]o grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to fundamental fairness." Id A prisoner's
disagreement with medical persormel over the course of his treatment will not support an Eighth
Amendment cause of action. Wright v. Collins. 766 F.2d 841, 849 (4th Cir. 1985).
A delay in medical treatment may constitute deliberate indifference. See Smith v. Smith.

589 F.3d 736, 739 (4th Cir. 2009) (citing EsteUe, 429 U.S. at 104-05). A constitutional violation

only occurs, however, if the delay results in some "substantial harm" to the patient. Thus, in
addition to showing that his medical need was objectively serious, the plaintiffmust also

establish that the delay in the provision of medical care resulted in an objectively "substantial

harm." See Webb v. Hamidullah. 281 Fed. App'x. 159, 166 (4th Cir. 2008) (unpublished
decision); Shabazz v. Prison Health Servs.. No. 3:10cvl90,2011 WL 2489661, at *6 (E.D. Va.
Aug. 9,2011). "The substantial harm requirement may be satisfied by lifelong handicap,
permanent loss, or considerable pain." Shabazz. 2011 WL 2489661, at *6.

Here, plaintifffails to establishthat either defendant was deliberately indifferent to the

serious medical need posed by histooth #21.'' Distilled to its essence, plaintiffs claim is that the
six-month period he was made to wait for a follow-up appointment with Dr. Ruffin amounted to
deliberate indifference, because in his view it necessitated the extraction of the tooth. However,

the undisputed evidence now before the Court does not support that conclusion.
First, there is no indication that Dr. Ruffin was deliberately indifferent to the condition of

plaintiffs tooth #21. As detailed above, plaintiffhad been experiencing problems with that
tooth for almost a decade prior to the events at issue here; in fact. Dr. Ruffin himself had noted

advanced periodontal disease in the area of tooth # 21 in March, 2013, and had performed a
restoration of the tooth in June, 2013. When plaintiff reported sensitivity in the tooth at his
February 20,2015 appointment, he was scheduled by defendant Mayhue in accordance with the

••Because the toothrequired extraction, and because plaintiffs claim clearlyfailson the deliberate
indifference component, the Court assumes for purposes of analysis that his condition was
sufficiently serious to warrant constitutional protection.
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VDOC Operating Procedures for follow-up routine care/ At the follow-up appointment in
August, 2015, Dr. Ruffm determined after decay was removed from the tooth that it would
require extraction, and the extraction was performed. Significantly, during the six months that
elapsed between the two appointments, plaintiff never requested pain medication and never
sought urgent or emergency dental care. While plaintiff clearly does not believe that these

measures were adequate, they belie any suggestion that Dr. Ruffm was deliberately indifferent to

the condition of plaintiffs tooth "by either actual intent or reckless disregard." Estelle. 429 U.S.

at 106; see Muhammad v. Tatro. 2013 WL375472 (W.D.Va. Jan. 30, 2013), afPd. 521 F. App'x

308 (4th Cir. 2013) (finding prison dentist wasnotdeliberately indifferent where plaintiffwas
placedon waiting list for routine dental treatment per VDOC procedures, waitingperiod was five
month, and plaintiff made no request for emergency dental treatment while waiting); Roval v.

Bassett. 2008 WL 5169443 at *1 (W.D.Va. Dec. 9, 2008), affd, 331 F. App'x 216 (4th Cir.
2009) (finding that plaintifffailed to establish deliberate indifference where he did not allege
"that he suffered trauma, swelling, excessive bleeding, infection, or unrelenting or severe pain as
the resuh of his dental conditions.").

Second, at this juncture it is apparent that the six-month delay about which plaintiff

complains did not cause him to suffer substantial harm. Plaintiff posits that the six-month delay

^Plaintiff asserts in the amended complaint that he had a dental treatment plan in place, which
meant that pursuant to OP 720.6 his appointments were to be scheduled no more than twelve weeks
apart. Dkt. No. 10, Statement of the Claim at 1-2. Dr. Ruffin denies in his Memorandum of Law
(although not in his affidavit) that plaintiff had a treatment plan. Dkt. No. 19 at 5. The dental
records supplied by the plaintiff as exhibits to the amended complaint demonstrate that he was
informed at least twice that he was scheduled for "routine care" for tooth #21, Dkt. No. 10,
Statement ofthe Claim, Ex. C-D; there is no mention or indication ofthe existence ofany treatment
plan.

caused the tooth to become unsalvageable and require extraction, but he has come forward with
nothing to rebut Dr. Ruffm's attestation that the "terrible condition" of the tooth would have

"take[n] years" to develop, and that "six-month wait in between plaintiffs February 2015
appointment and his return to the clinic on August 3,2015 did not determine the final outcome of

the extraction of tooth # 21." Ruffin Aff., ^ 8. Clearly, the six-month delay did not of itself
comprise a constitutional violation. See Webb v. Rav. 2006 WL 1587461 at * 5-6 (W.D.Va.
June 6,2006), affd , 215 F. App'x 246 (4th Cir. Jan. 30, 2007) (allegations of six-month delay in

providingdental care failed to state a claim of constitutional magnitude where plaintiff failed to

allege dental problems requiring immediate treatment or that defendants knowingly disregarded a
an excessive risk to his dental health). Plaintiff also asserts that the extraction of the tooth left

him with only seven bottom teeth and nine top teeth and caused him to suffer difficultly in
chewing and weight loss. Am. Compl. at 5-6. However, since a normal adult mouth has 32

teeth, it s readily apparent that plaintiff's ability to chew was already significantly compromised
prior to the extraction of tooth # 21. Accordingly, as plaintiff has failed to establish either that

Dr. Ruffm was deliberately indifferent to the condition of his decayed tooth or that the delay in
treating the tooth caused him to suffer substantial harm, his claim that Dr. Ruffm violated his
Eighth Amendment rights must fail.

Plaintiffs claim that defendant Mayhue violated his constitutional rights is even more

tenuous. Her sole connection with the situation at issue here was to schedule plaintiff's followup appointment ordered by Dr. Ruffm after plaintiff's February 20,2015 dental examination.
According to her affidavit, she scheduled an appointment for routine dental treatment in
chronological order, in accordance with the VDOC Operating Procedures. Mayhue Aff.,

10

1,3.

She had no responsibility for hiring or assigning VDOC dental personnel, so to the extent that the

delay plaintiff experienced may have been the result of Dr. Ruffm's busy schedule, Mayhue
cannot be held responsible for it. See Rvan v. Whitehead. 2010 WL 2816976 (D. Md. July 15,
2010) (delay in providing dentures to prisoner due to dental staff treating urgent and emergent

dental needs of other inmates did not constitute deliberate indifference); Crosby v. Cushinberrv.

2009 WL 8690264 (E.D.Va. Sept. 30, 2009), affd, 388 F. App'x 253 (4th Cir. July 14,2010)

(jail technician could not be held liable for delay resulting from shortage of dental personnel
where hiring decision were made by higher-ranking officials). Here, then, defendant Mayhue is
also entitled to the summary judgment she seeks.
IV. Conclusion

For the foregoing reasons, plaintiffs Motion for Default Judgment will be denied,

defendant Mayhue's Motion for Leave to File Out of Time Response will be granted, and both

defendants' Motions for Summary Judgment will be granted. An appropriate Order and
Judgment shall issue.

Entered this

day of

2017.

United States District Judge

Alexandria, Virginia

11