Hammersley, Robert v. DeLap, Barbara et al
ORDER that plaintiff Robert Hammersley's request for leave to proceed is DENIED and his complaint is DISMISSED with prejudice for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983. Signed by District Judge William M. Conley on 3/3/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION AND ORDER
BARBARA DELAP, et al.,
Former state inmate Robert Hammersley brings this action under 42 U.S.C. § 1983
alleging that he was denied adequate dental care while incarcerated by the Wisconsin
Department of Corrections (“WDOC”).
Hammersley requests leave to proceed without
prepayment of fees and costs. After considering that request and supporting documentation
provide by Carter, the court has determined that he qualifies for indigent status for purposes
of the federal in forma pauperis statute, 28 U.S.C. § 1915(a). Before he can proceed, however,
the court is also required to determine whether the proposed action (1) is frivolous or
malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks money
damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(b). In
addressing any pro se litigant’s pleadings, the court must construe the allegations generously,
and hold the complaint “to less stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 521 (1972). Even under this lenient standard, the
court must deny Hannersley leave to proceed and will dismiss the complaint for reasons set
ALLEGATIONS OF FACT
Hammersley alleges, and the court assumes for purposes of this screening order, the
Plaintiff Hammersley was born with a cleft palette that required surgical repair. In
1988, one of his front teeth was removed during a bone graft operation. Eventually, an
orthotic “dental bridge” was placed in the upper anterior portion of Hammersley’s mouth,
replacing the front tooth that had been removed. The bridge was secured to adjacent teeth.
From October 2008 through January 2013, Hammersley was incarcerated by WDOC.
Beginning in May 2009, Hammersley complained of sensitivity in the front teeth around his
bridge. In response, Hammersley received dental care at the Dodge Correctional Institution
from the following defendants: Dr. William Flanagan and his dental assistant; Dr. David
Smith and his dental assistant; Dr. Veronica Smith and her dental assistant; Dr. Craig
Rosenthal and his dental assistant; Dr. Chris Rauch and his dental assistant; and Dr. D.
Bogenpohl and his dental assistant.
Hammersley claims that his front teeth were healthy before he entered WDOC in
2008, but that following Hammersley’s release from prison, his bridge “came off.” At an
appointment on January 31, 2013, his dentist observed that a tooth abutting the bridge
(tooth 9) had “extensive and unrestorable recurrent caries” or cavities and would need to be
extracted. Hammersley claims that the dentists and dental assistants who treated him while
he was incarcerated breached a duty of due care and were negligent. He claims further that
Barbara Delap is liable as the Director of Dental Services for WDOC under a theory of
Hammersley seeks relief for civil rights violations pursuant to 42 U.S.C. § 1983. To
establish liability under § 1983, a plaintiff must establish that (1) he had a constitutionally
protected right; (2) he was deprived of that right in violation of the Constitution; (3) the
defendant intentionally caused that deprivation; and (4) the defendant acted under color of
state law. Cruz v. Safford, 579 F.3d 840, 843 (7th Cir. 2009); Schertz v. Waupaca County, 875
F.2d 578, 581 (7th Cir. 1989).
To state an Eighth Amendment violation for the denial of medical care, a prisoner
must allege facts from which it can be inferred that prison officials were deliberately
indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011).
A prison official acts with “deliberate
indifference” if he intentionally disregards a known, objectively serious medical condition
that poses an excessive risk to an inmate’s health.1 See Farmer v. Brennan, 511 U.S. 825,
837 (1994). This deliberate-indifference standard applies to dental care, among other
medical conditions. See McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (citing
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)); see also Wynn v. Southward, 251
F.3d 588, 593 (7th Cir. 2001) (inability to chew food, bleeding, headaches, cracked teeth
and extreme pain are examples of harms that present serious dental needs).
Hammersley’s complaint fails for two reasons under this standard.
Hammersley sues defendant Delap under 42 U.S.C. § 1983 primarily in her capacity as a
supervisory official. However, there is no respondeat superior or vicarious liability under
§ 1983. See Monell v. Dep’t of Social Services, 436 U.S. 658, 694 (1978); Kinslow v. Pullara,
538 F.3d 687, 693 (7th Cir. 2008). For a supervisor to be liable, he or she must be
For example, serious medical conditions include: (1) those that are life-threatening or that
carry risk of permanent serious impairment if left untreated; (2) those in which the
deliberately indifferent withholding of medical care results in needless pain and suffering;
and/or (3) conditions that have been “diagnosed by a physician as mandating treatment.”
Gutierrez v. Peters, 111 F.3d 1364, 1371-73 (7th Cir. 1997).
“personally responsible for the deprivation of the constitutional right.” Chavez v. Illinois
State Police, 251 F.3d 612, 651 (7th Cir. 2001) (quoting Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995)). Hammersley does not allege sufficient facts to make such an
Second, Hammersley does not establish a constitutional violation with respect to the
dentists and dental assistants who treated him while he was in prison. Instead, his allegations
go solely to defendants’ alleged negligence. Inadvertent error, negligence or gross negligence
are insufficient grounds for invoking the Eighth Amendment. Vance v. Peters, 97 F.3d 987,
992 (7th Cir. 1996). Absent a constitutional violation, Hammersley fails to state a claim
upon which relief may be granted for purposes of 42 U.S.C. § 1983.2
IT IS ORDERED that plaintiff Robert Hammersley’s request for leave to proceed is
DENIED and his complaint is DISMISSED with prejudice for failure to state a claim upon
which relief may be granted under 42 U.S.C. § 1983.
Entered this 3rd day of March, 2015.
BY THE COURT:
WILLIAM M. CONLEY
Obviously, the court expresses no opinion on the viability of a state law negligence claim,
should plaintiff choose to pursue one in state court.
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