Poff v. Pollard et al

Filing 70

ORDER signed by Judge J.P. Stadtmueller on 6/23/2017: GRANTING 59 Defendants' Motion for Summary Judgment and DISMISSING action with prejudice. (cc: all counsel, via mail to Jeff Poff at Columbia Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFF POFF,
Plaintiff,

v.

DR. JOHN SCHETTLE, DR. MAN LEE,
AMANDA COLE, and JASON
JACKSON,

Case No. 15-CV-954-JPS

ORDER

Defendants.
Plaintiff Jeff Poff (“Poff”), a prisoner, brings this action pursuant to
42 U.S.C. § 1983 against Defendants, prison officials at Waupun
Correctional Institution (“Waupun”), alleging that they acted with
deliberate indifference to his medical needs—specifically, that they failed
to properly treat a tooth he chipped on a rock in his baked beans.
Defendants filed a motion for summary judgment on May 22, 2017. (Docket
#59). Poff filed a response on May 26, 2017. (Docket #66 and #67).
Defendants replied on June 9, 2017. (Docket #68). For the reasons stated
below, Defendants’ motion will be granted and this action will be
dismissed.
1.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the court “shall

grant summary judgment 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); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). The court must not weigh the evidence presented
or determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688,
691 (7th Cir. 2010). The party opposing summary judgment “need not
match the movant witness for witness, nor persuade the court that [his] case
is convincing, [he] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
2.

RELEVANT FACTS
2.1

Poff’s Failure to Dispute the Material Facts

The relevant facts are largely undisputed because Poff did not
dispute them. In the Court’s amended scheduling order, entered January
23, 2017, Poff was warned about the requirements for opposing a motion
for summary judgment. (Docket #51 at 3). Accompanying that order were
copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both
of which describe in detail the form and contents of a proper summary
judgment submission. Most relevant here is Local Rule 56(b)(2), which
obligates the non-movant on summary judgment to file “a concise response
to the moving party’s statement of facts that must contain a reproduction
of each numbered paragraph in the moving party’s statement of facts
followed by a response to each paragraph, including, in the case of any
disagreement, specific references to the affidavits, declarations, parts of the

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record, and other supporting materials relied upon[.]” Civ. L. R.
56(b)(2)(B)(i).
Next, on May 22, 2017, Defendants filed their motion for summary
judgment. (Docket #59). In the motion, Defendants also warned Davis about
the requirements for his response as set forth in Federal and Local Rules 56.
Id. at 1–2. He was provided with additional copies of those Rules along with
Defendants’ motion. See id. at 3–12. In connection with their motion,
Defendants filed a supporting statement of material facts that complied
with the applicable procedural rules. (Docket #61). It contained short,
numbered paragraphs concisely stating those facts which Defendants
proposed to be beyond dispute, with supporting citations to the attached
evidentiary materials. See id.
In response, Poff submitted two documents, neither of which
respond to Defendants’ statement of facts in compliance with the Federal
and Local rules. The first is his brief in opposition to Defendants’ motion.
(Docket #66). His brief contains a prose recitation of his version of the
relevant events, but it neglects to specifically address the numbered
paragraphs set forth in Defendants’ statement of facts. See id. at 1–5.
Moreover, Poff’s factual narrative does not contain citations to any record
evidence. Id. Instead, he simply attached over fifty pages of exhibits to the
brief, including requests for medical care, medical records, and inmate
grievances, without explanation. See (Docket #66-1). Similarly, Poff’s other
submission, his own “proposed findings of fact,” provides no citations to

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actual evidence, nor does it address Defendant’s statement of facts in any
fashion. (Docket #67). 1
Despite being twice warned of the strictures of summary judgment
procedure, Poff ignored those rules by failing to properly dispute
Defendants’ proffered facts with citations to relevant, admissible evidence.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required
to liberally construe a pro se plaintiff’s filings, it cannot act as his lawyer,
and it cannot delve through the record to find favorable evidence for him.
See Waldridge, 24 F.3d at 922; Herman v. City of Chicago, 870 F.2d 400, 404 (7th
Cir. 1989) (“A district court need not scour the record to make the case of a
party who does nothing.”). Further, while the Court is cognizant that Poff
lacks legal training, his utter failure to comply with the rules of procedure
is not excusable on that ground alone. Thus, the Court will, unless
otherwise stated, deem Defendants’ facts undisputed for purposes of
deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ.
L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting
that district courts have discretion to enforce procedural rules against pro se
litigants).
2.2

Facts Material to Defendants’ Motion

Poff was an inmate at Waupun. Defendants were at the relevant time
all employees of the Wisconsin Department of Corrections (“DOC”): Dr.
John Schettle (“Schettle”) was a dentist at Waupun; Dr. Man Lee (“Lee”) is
the DOC’s dental director; Amanda Cole (“Cole”) is a dental hygienist at

Poff filed another batch of exhibits, again without explication, after the
close of the briefing period for Defendants’ motion. See (Docket #66-2). The Court
reviewed these documents and finds them wanting for the same reasons as his
timely submissions.
1

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Waupun; and Jason Jackson (“Jackson”) is a dental assistant at Waupun. As
noted above, this case stems from allegedly inadequate medical care Poff
received after he chipped his tooth on a rock buried in his food.
2.2.1

Dental Services for Waupun Inmates

When inmates enter DOC institutions, they are given an inmate
handbook informing them that if they require non-emergency dental
attention, they must submit a dental services request to the health/dental
services unit. Inmates are informed that if they need to see dental staff
immediately for an emergency, they need to alert unit staff of their concern.
Waupun’s dental services unit receives between 10–25 dental services
requests from inmates on a typical day.
Pursuant to DOC policy, these requests are divided into four
categories—emergency, urgent, routine, and hygiene. Under those policies,
only the institution dentist is qualified to triage dental services requests.
The policy defines a dental “emergency” as a dental problem causing a lifethreatening condition and requiring immediate care. Examples include:
uncontrolled bleeding, allergic reactions/shock, swelling or fractures
causing impaired breathing, high fever from dental infection, or serious
trauma.
An “urgent” request involves a dental condition which, if not
addressed in a timely manner, could result in severe pain and suffering. In
addition to pain, other factors are considered when scheduling urgent
appointments, such as whether the inmate has an exposed nerve, facial
swelling, or an inability to eat or sleep. Generally, urgent dental issues are
brought to the dental services unit’s attention by security or health services
staff, not through a dental services request.

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Non-emergency “routine” dental services are elective and provided
when requested by the inmate or when determined to be clinically
appropriate by the treating dentist. Routine requests are further subdivided
into three categories: routine, essential routine, and prosthetic routine.
Routine requests include dental conditions that are asymptomatic and for
which a delay in completion of up to one year would not result in serious
health risks. This includes minor cavities, old but serviceable fillings,
prosthetics which are cosmetic only, or denture repairs when the denture
remains functional. Essential routine requests include dental conditions
which are chronic, asymptomatic, and which if not completed within 6–8
weeks could result in an acute episode. This encompasses advanced
cavities, teeth with hopeless prognosis, infected teeth, and care for inmate
patients which is relevant to their chronic medical conditions.
Schettle makes every effort to see inmates who are scheduled on the
essential routine wait list within five days. As the dentist at Waupun,
Schettle triaged the inmates’ dental services requests and identified the
proper category of the request, i.e., routine, essential routine, hygiene, etc.
Schettle then forwarded the requests to Jackson, the dental assistant, for
placement on the identified wait list.
2.2.2

Poff’s Chipped Tooth and Treatment

On Tuesday, January 21, 2014, Poff bit into a rock that was in his
baked beans. He sent a request to the dental services unit stating that he
cracked his tooth on a rock in his food, that he was in “major” pain, and
that he also needed his teeth cleaned. The next day, Schettle reviewed the
request and determined that an urgent appointment was not required.
Though Poff complained of pain, there was no mention of an exposed
nerve, facial swelling, or an inability to eat or sleep which would have
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indicated a need for immediate care. Schettle responded to Poff that he
would be placed on the essential routine wait list and the hygiene/teeth
cleaning wait list. Jackson placed Poff on both wait lists.
On Saturday, January 25, 2014, Poff submitted another request to the
dental services unit, reiterating his claims of intense pain, which Schettle
received on Monday, January 27. Schettle saw Poff that same day. At the
appointment, Poff said his pain was located in the upper right part of his
mouth, which Schettle identified as tooth #2. Jackson took a periapical x-ray
of Poff’s tooth #2 to identify potential issues below the gum line. The x-ray
also showed portions of the adjacent teeth but did not image the entire
mouth.
Schettle found a small distal buccal cusp chip in tooth #2 and an
unrelated canker sore on the roof of Poff’s mouth on the left. The chip in
Poff’s tooth appeared to be caused by trauma. Schettle filled Poff’s tooth #2
with an occlusal composite filling and applied Debacterol on the canker
sore to provide pain relief and assist with the natural healing process.
Poff’s injury related to the rock-biting incident was fully resolved
with the filling Poff received at his January 27th appointment. On January
29, however, Poff submitted a request to dental services stating that he
believed Schettle might have missed another cracked tooth in his mouth
due to the rock. Schettle triaged the request and determined Poff should be
placed on the routine wait list because he did not complain of any pain.
On February 11, 2014, Poff sent another request to dental services
saying that it had been two weeks since he was last seen, reiterating his
belief that Schettle might have missed a second cracked tooth, and stating
that he was in a lot of pain. Based on Poff’s complaint of pain, Schettle
placed him on the essential routine wait list. On February 14, Schettle saw
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Poff regarding his complaints. Poff raised three issues: a canker sore on his
lower right-side outer gum; a perception of chipped teeth or missing fillings
on both the right and left side of his lower jaw; and a chipped tooth on the
cheek side of his right upper jaw.
Upon examination, Schettle determined that Poff had no chipped
teeth or failed restorations on the lower jaw. Schettle identified small chips
on the grinding surface of Poff’s teeth #2 and #3 on the cheek side of the
right upper jaw. According to Schettle, this type of wear is generally caused
by age, chewing and tooth grinding, and normal wear and tear. The small
chips were so shallow that Poff did not need fillings, so Schettle treated the
chips by smoothing them with a smoothing/polishing fine diamond or
synthetic stone dental bur. He also applied Debacterol to the canker sore.
On February 27, Poff sent yet another request to dental services, this
time demanding an x-ray to show that he had damage to two other teeth
from the rock incident and claiming Schettle was denying him proper
medical treatment. Schettle responded that Poff was seen and treated on
January 27 for the rock incident. Schettle also had Jackson schedule Poff for
a teeth cleaning and examination.
On April 4, 2014, Cole saw Poff for his teeth cleaning appointment.
Poff reported to Cole that he did not brush his teeth at that time. Cole
encouraged him to begin brushing again. She identified a canker sore on
the inside of the left lower jaw. She then took four bitewing x-rays to show
all Poff’s teeth in a panorama. Cole noted on the x-ray report Poff’s overall
poor oral hygiene, including gingivitis, periodontitis, high levels of plaque
accumulation, moderate calcium buildup, high levels of staining and
discoloration, and high levels of bleeding during his dental prophylaxis.

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Schettle, reviewing the x-rays, found that they showed marginal
breakdown of the amalgam filling of tooth #12 (in the upper left quadrant)
which would need a new restoration. Under DOC policy, this sort of
problem would be relegated to the routine services wait list. The marginal
breakdown of the restoration to Poff’s tooth #12 was most likely age-related
or related to underlying decay. He also observed a canker sore on Poff’s
gums on the lower left side of his jaw, to which he applied Debacterol.
On August 6, 2014, Poff saw Dr. Lee at his cell in the restrictive
housing unit. Poff complained of pain due to a possibly cracked tooth on
the lower left side of his jaw. Lee scheduled Poff to be seen in the dental
clinic. On September 15, Lee saw Poff in the dental clinic. Poff reported that
he had pain in the lower left and upper right portions of his mouth as a
result of biting a rock. Lee noted that the upper right-side filling had been
completed and that the x-rays taken in April showed the teeth on Poff’s
lower left side (#17, #18, and #19) were within normal limits.
Lee noted that tooth #17 was supra-erupted due to lack of an upper
opposing tooth. This meant that Poff’s tooth #17 continued to migrate
outward because there was no opposing tooth to push against. The
supraeruption, combined with poor oral hygiene, created a deep pocket
food trap which irritated the area of teeth #17–#19. Lee recommended a
cleaning of Poff’s teeth #17–#19 and a fluoride varnish to desensitize the
area. Lee saw nothing that made him believe Poff’s symptoms in August
and September 2014 were related to the rock incident in January or
purportedly deficient care following the rock incident.
Cole saw Poff again on October 17, 2014, when she deep-cleaned
teeth #17, #18, and #19 per Lee’s direction and provided a fluoride varnish
to desensitize the area. Poff and Cole again discussed his periodontal
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disease due to years of poor oral hygiene and the importance of brushing
and flossing. Shortly thereafter, Poff was transferred to Green Bay
Correctional Institution. He is currently housed at Columbia Correctional
Institution.
3.

ANALYSIS

In this suit, Poff claims that Defendants were deliberately indifferent
to his dental condition, in violation of the Eighth Amendment. To state a
claim under 42 U.S.C. § 1983 for deliberate indifference to a serious medical
need, the plaintiff must show: (1) an objectively serious medical condition;
(2) that the defendants knew of the condition and were deliberately
indifferent in treating it; and (3) this indifference caused the plaintiff some
injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The deliberate
indifference inquiry has two components. “The official must have
subjective knowledge of the risk to the inmate’s health, and the official also
must disregard that risk.” Id. Even if an official is aware of the risk to the
inmate’s health, “he is free from liability if he ‘responded reasonably to the
risk, even if the harm ultimately was not averted.’” Id. (quoting Farmer v.
Brennan, 511 U.S. 825, 843 (1994)). Negligence cannot support a claim of
deliberate indifference, nor is medical malpractice a constitutional
violation. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011).
3.1

Poff Did Not Have a Serious Medical Need

Poff’s claim fails out of the gate because his chipped tooth did not
qualify as an objectively serious medical condition. An objectively serious
medical need is “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d
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1364, 1373 (7th Cir. 1997). It need not be “life-threatening,” id., but to rise to
the level of constitutional seriousness, the condition should constitute “a
denial of the minimal civilized measure of life’s necessities,” Farmer, 511
U.S. at 834. Thus, a medical need may be deemed serious if it is lifethreatening, carries risks of permanent serious impairment if left untreated,
results in needless pain and suffering when treatment is withheld, Gutierrez,
111 F.3d at 1367–73, “significantly affects an individual’s daily activities,”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998), causes pain, Cooper v.
Casey, 97 F.3d 914, 916–17 (7th Cir. 1996), or otherwise subjects the prisoner
to a substantial risk of serious harm, Farmer, 511 U.S. at 834.
Here, Poff suffered a small chip in one tooth from biting down on a
rock. He did not have uncontrolled bleeding, allergic reactions or shock,
swelling or fractures, fever from infection, or other serious trauma that
would indicate an emergency dental need. Nor did he have an exposed
nerve, facial swelling, or an inability to eat or sleep that would indicate pain
serious to warrant exigent treatment. Put simply, a minor chipped tooth is
not commonly life-threatening, debilitating, or uncontrollably painful.
It is true that “‘[d]ental care is one of the most important medical
needs of inmates.’” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001)
(quoting Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980)). Yet Poff’s
chipped tooth does not compare to cases where the Seventh Circuit has
found that an inmate presented a serious dental need. Such cases typically
involve either debilitating pain or a combination of pain and the ongoing
risk of more serious harms like infection or tooth decay. See McGowan v.
Hulick, 612 F.3d 636, 638 (7th Cir. 2010) (a “botched” tooth extraction caused
a sinus perforation, painful swelling so large the inmate could not close his
mouth, infection, and a foul-tasting discharge that kept him from eating);
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Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940–41 (7th Cir. 2015) (tooth
abscess is a serious medical need because “[a] tooth abscess is not a simple
toothache. It is a bacterial infection of the root of the tooth, and it can spread
to the adjacent gum and beyond—way beyond. It is often painful and can
be dangerous.”); Smego v. Mitchell, 723 F.3d 752, 756–57 (7th Cir. 2013)
(thirty months of serious dental pain from twelve untreated cavities was a
serious medical need); Hoeft v. Menos, 347 F. App’x 225, 227 (7th Cir. 2009)
(six months of extensive pain from untreated cavities and tooth loss that
prevented the inmate from properly chewing his food qualified as a serious
medical condition). Poff’s chipped tooth, by contrast, was not infected, he
did not complain of trouble eating or sleeping, and he had no swelling or
uncontrolled bleeding. Although he now claims that the chipped tooth
prevented him from sleeping and eating, (Docket #66 at 7), he never
mentioned this in his numerous requests for dental care, and he offers no
sworn statement to substantiate the assertion, see McGinn v. Burlington N.
R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (the party resisting summary
judgment “cannot rest on his pleadings, but must produce his own
evidence”).
Poff’s condition is much more like Greene v. Pollard, 335 F. App’x 612,
614 (7th Cir. 2009), where the Seventh Circuit affirmed dismissal of an
inmate’s complaint regarding a chipped tooth. The only symptoms the
prisoner alleged were a constant aching in his tooth, a sensitivity to hot and
cold temperatures, and a chipped tooth. Id. The court concluded that
“[t]hese symptoms fall short of a condition such as tooth decay or gum
infection, which we have recognized as serious because of the substantial
risks to health if left untreated.” Id. The court further observed, “[i]t may
have behooved the dentist to inquire further about his pain, but if Greene’s
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condition has indeed worsened to the point where it interferes with his
eating and sleeping, he is free to request another appointment.” Id. As in
Greene, here Poff’s chipped tooth may have caused some pain, but there is
insufficient evidence that it could progress toward a more serious dental
condition or that his paid was unbearable. See Board v. Farnham, 394 F.3d
469, 480 (7th Cir. 2005) (breaking off tooth below gumline, rather than
extracting it, was objectively serious because it left a risk of infection);
Wynn, 251 F.3d at 593 (denial of dentures made it hard to eat and caused
bleeding, headaches, and disfigurement). As such, the undisputed facts
show that Poff did not present an objectively serious medical need.
3.2

Defendants Were Not Deliberately Indifferent to
Poff’s Medical Needs

Even if the Court found that Poff’s chipped tooth was a serious
medical need, the record does not establish that Defendants were
deliberately indifferent to his condition. To prove this, a plaintiff has to
come forward with evidence showing more than ordinary or even gross
negligence. McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991); Hughes v.
Joliet Corr. Ctr., 931 F.2d 425, 428 (7th Cir. 1991). Instead, he must prove that
the medical professional’s treatment decisions were “such a substantial
departure from accepted professional judgment, practice, or standards as
to demonstrate that the person responsible did not base the decision on
such a judgment.” Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261–62 (7th
Cir. 1996). It is “obduracy and wantonness, not inadvertence or error in
good faith, that characterize[s] the conduct prohibited by the [Eighth
Amendment].” Whitley v. Albers, 475 U.S. 312, 319 (1986).
The question is not whether the plaintiff believes some other course
of treatment would have been better. Snipes v. DeTella, 95 F.3d 586, 591 (7th

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Cir. 1996); Reynolds v. Barnes, 84 F. App’x 672, 674 (7th Cir. 2003) (“[T]he
Constitution does not mandate that a prisoner receive exactly the medical
treatment he desires.”). If the inmate has received some health care, it then
falls to him to show that the treatment he received was “so blatantly
inappropriate as to evidence intentional mistreatment likely to seriously
aggravate” his serious medical condition. Snipes, 95 F.3d at 592. Mere
disagreement with a doctor’s medical judgment is insufficient. Edwards v.
Snyder, 478 F.3d 827, 831 (7th Cir. 2007); Walker v. Zunker, 30 F. App’x 625,
628 (7th Cir. 2002) (“Mere dissatisfaction with a particular course of
treatment, or even malpractice, does not amount to deliberate
indifference.”). Put differently, the plaintiff must show that his medical
providers made treatment decisions “‘so dangerous’ that the deliberate
nature of [their] conduct can be inferred.” Gayton, 593 F.3d at 623 (quoting
Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999)). Courts generally defer to
physicians’ treatment decisions, since “there is not one proper way to
practice medicine, but rather a range of acceptable courses.” Jackson v.
Kotter, 541 F.3d 688, 697–98 (7th Cir. 2008). A court must “examine the
totality of an inmate’s medical care when considering whether that care
evidences deliberate indifference to his serious medical needs.” Dunigan ex
rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir. 1999).
Poff’s first claim is that he was not treated quickly enough after the
rock-biting incident. Poff first alerted the dental services unit of his chipped
tooth on Wednesday, January 22, 2014. Schettle saw him on Monday,
January 27, took an x-ray, gave Poff a filling for his chipped tooth, and
treated Poff’s canker sore. After this appointment, Poff’s dental issues
related to the rock-biting incident were resolved.

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Poff experienced a five-day delay in receiving treatment. Even
crediting Poff’s representations that he experienced severe pain during this
window, the Court can find unconstitutional delay only where the delay
was “objectively, sufficiently serious” so as to constitute the “denial of the
minimal civilized measures of life’s necessities.” Farmer, 511 U.S. at 834
(quotation omitted). This can occur when prison medical staff ignore a
serious, readily treatable medical condition without good reason. Smith v.
Knox County Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). “[T]he length of delay
that is tolerable depends on the seriousness of the condition and the ease of
providing treatment.” McGowan, 612 F.3d at 640. “Delay is not a factor that
is either always, or never, significant. Instead, the length of delay that is
tolerable depends on the seriousness of the condition and the ease of
providing treatment.” Id. The Seventh Circuit holds that “[i]n cases where
prison officials delayed rather than denied medical assistance to an
inmate,” the plaintiff must “offer verifying medical evidence that the delay
(rather than the inmate’s underlying condition) caused some degree of
harm.” Conley v. Birch, 796 F.3d 742, 749 (7th Cir. 2015).
Poff has no verifying medical evidence that the five-day delay in
receiving dental treatment caused him harm other than his unsworn claims
of pain. As explained above, assuming his pain was so severe that it kept
him from sleeping, he never said so in any communication to the dental
services staff, and they cannot have been deliberately indifferent to
conditions they did not know existed. Gayton, 593 F.3d at 620 (prison official
must actually know of the inmate’s condition and then disregard it). Poff
gestures at the idea that Schettle’s delay in seeing him was a violation of
DOC policy, (Docket #66 at 1–2), but he does explain which policy or why.
Nor would violation of correctional policy, standing alone, suffice to
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establish deliberate indifference. See Guzman v. Sheahan, 495 F.3d 852, 857
(7th Cir. 2007); Martinez v. Hedrick, 36 F. App’x 209, at *2 (7th Cir. 2002).
Without more, the Court cannot say that a five-day delay in scheduling a
dental appointment for a chipped tooth—which Poff did not tell Schettle
was keeping him up at night—amounts to an unconstitutional level of
delay, even it if was painful for Poff. Thus, the delay between Poff’s initial
injury and treatment is not itself sufficient to establish deliberate
indifference.
Nor was Poff’s follow-up care constitutionally deficient. First, Poff
complains about not receiving a full panorama x-ray at the January 27
appointment. Again, he asserts, without citation or elucidation, that this
was required by DOC policy. (Docket #66 at 2). But Schettle took an x-ray
of the area where Poff complained of pain from the rock. In Schettle’s
professional judgment, Poff did not need a more comprehensive
examination for his presented symptoms.
This case is like Brady v. Aldridge, 493 F. App’x 790, 791–92 (7th Cir.
2012), where the inmate’s claim failed because “[h]is allegations about the
absence of new xrays or a thorough examination reflect[ed] merely a
disagreement with [the dentist’s] professional judgment and did not state a
claim for deliberate indifference.” Here, not only did Schettle use his
professional judgment in determining Poff did not need a more
comprehensive assessment than what was provided on January 27, but Poff
also fails to adequately describe what difference a comprehensive
assessment would have made as it related to his chipped tooth from biting
the rock. Thus, Schettle’s refusal to follow Poff’s preferred diagnostic route
did not constitute deliberate indifference. Forbes v. Edgar, 112 F.3d 262, 267

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(7th Cir. 1997) (“Under the Eighth Amendment, [a prisoner] is not entitled
to demand specific care.”); Reynolds, 84 F. App’x at 674.
Further, as explained above, Poff protests that Schettle missed
another chipped tooth. Following Poff’s continued complaints, Schettle saw
him on February 14, 2014 for his “perception” of chipped teeth or missing
fillings. Yet examination revealed that Poff had no chipped teeth or failed
restorations on the lower jaw. Schettle identified small chips on the
grinding surface of some of Poff’s teeth #2 and #3, but this is normal, agerelated wear and tear. These chips were so minor that Poff did not need
fillings, and Schettle simply smoothed them with a dental bur.2
Most of the time, Poff attributed the alleged additional chipped tooth
or teeth to the rock-biting incident. (Docket #66-1 at 9–10, 12, 15). Yet Poff
also said at various points that the chip was caused by Schettle, who,
according to Poff, accidentally shaved down Poff’s tooth #3 as well as the
affected tooth, #2, during the January 27, 2014 appointment. Id. at 2, 7–8.
Poff makes no effort to resolve this major discrepancy in his narrative,
perhaps hoping one or the other might suffice to make out his claim.
In any event, Poff’s shifting theory makes no difference to the result
here. First, beyond his unsworn, lay opinion, he provides no actual
evidence that Schettle made such a mistake or how it caused him additional
injury. See id. at 15, 18; McGinn, 102 F.3d at 298. Second, even if Poff is
correct, Schettle’s accidental shaving of the wrong tooth during the January
27 operation represents, at worst, medical malpractice, for which the
Constitution provides no remedy. Steele v. Choi, 82 F.3d 175, 178 (7th Cir.

Poff counters with the evidence-free assertion that Schettle’s work on this
date was “horrible” and “made the problem [worse].” (Docket #67 ¶ 22).
2

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1996) (“Estelle requires us to distinguish between ‘deliberate indifference to
serious medical needs’ of prisoners, on the one hand, and ‘negligen[ce] in
diagnosing or treating a medical condition,’ on the other.”) (quoting Estelle,
429 U.S. at 106); Snipes, 95 F.3d at 590 (“[T]he Eighth Amendment is not a
vehicle for bringing claims for medical malpractice.”).
The remainder of Poff’s treatment confirms that prison officials were
not deliberately indifferent to his needs. When Poff continued to complain
about his dental treatment and pain, Schettle informed him that, in light of
the January 27 treatment and February 14 evaluation, there were no
additional cracked teeth to treat. Schettle also scheduled him for a cleaning,
which Cole performed on April 4. Lee then saw Poff in August and
September 2014, and Poff reported that he had mouth pain resulting from
biting a rock. Lee found no cracked teeth but noted that tooth #17 was
supra-erupted. This condition, coupled with Poff’s concededly poor oral
hygiene, created a deep pocket food trap which irritated the left upper side
of his mouth. Importantly, Lee saw nothing that made him believe Poff’s
symptoms in August and September of 2014 were related to the rock-biting
incident in January or deficient care following that incident. Cole saw Poff
again on October 17th for a deep cleaning of teeth #17, #18, and #19 and
applied a fluoride varnish to desensitize the area as Lee ordered.
Whether one course of treatment is preferable to another is a classic
example of the exercise of medical judgment, and it rests beyond the Eighth
Amendment’s purview. Snipes, 95 F.3d at 590–91. The Constitution is not a
medical code that mandates specific medical treatment, id. at 592, and Poff
is not entitled to demand specific care. Forbes, 112 F.3d at 267. His
dissatisfaction with Defendants’ prescribed course of treatment—in
particular, Defendants’ alleged failure to see cracked teeth that were not
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there—would only raise constitutional concerns if such a decision was “so
blatantly inappropriate as to evidence intentional mistreatment likely to
seriously aggravate the prisoner’s condition.” Snipes, 95 F.3d at 592; Johnson
v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (plaintiff must show that the
doctor knew that his chosen treatment method would be less effective). No
such evidence exists in this case. Rather, Defendants took reasonable
measures under the circumstances to treat the conditions presented. Forbes,
112 F.3d at 267.3 Poff’s claims must, therefore, be dismissed.4
4.

CONCLUSION
Poff did not adequately challenge the facts Defendants proffered.

Viewing those undisputed facts even in the light most favorable to him, the
Court finds that Poff’s claims fail as a matter of law. This action will,
therefore, be dismissed.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #59) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.

It follows from this conclusion that Poff’s claim of undue delay (and pain)
following the January 27 appointment is without merit, since after that time there
was no cracked tooth to treat.
3

Because the Court finds that no Defendant exhibited deliberate
indifference to Poff’s medical needs, it need not assess Defendants’ contention that
some of them, including Cole, Jackson, and Lee, lacked sufficient personal
involvement in Poff’s claim for deliberate indifference. See (Docket #60 at 18–19);
Gentry v. Duckword, 65 F.3d 555, 561 (7th Cir. 1995).
4

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Dated at Milwaukee, Wisconsin, this 23rd day of June, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Court

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