Gordon, Samterious v. Brown et al

Filing 70

ORDER that the motion for summary judgment, dkt. 41 , is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to plaintiff Samterious Gordon's claims against defendants Frisk, Rink, Kahenbuhl, Brown, Gohde, Barker, Lee, Noth and Sieber. The motion is DENIED as to plaintiff's claims against Dobbert, Fraundorf and Cross. Signed by District Judge Barbara B. Crabb on 11/18/2019. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - SAMTERIOUS GORDON,
OPINION AND ORDER
Plaintiff,
18-cv-176-bbc
v.
DR. MICHAEL BROWN, DREW CROSS,
JOSEPH FRAUNDORF, NICHOLAS SIEBER,
JAMIE BARKER, MORGHAN GILSON NOTH,
DR. MANN LEE, LYNN DOBBERT, KOREEN
FRISK, BRIDGET RINK, NICOLE KRAHENBUHL
AND JAMIE GOHDE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - Pro se plaintiff Samterious Gordon is proceeding on claims that staff at New Lisbon
Correctional Institution violated his rights under the Eighth Amendment and state law by
failing to provide him adequate dental care. In particular, he contends that security staff
(defendants Joseph Fraundorf, Nicholas Sieber and Drew Cross) refused to contact dental
or health services despite knowing he was in pain; health services nursing staff (defendants
Koreen Frisk, Bridget Rink, Nicole Krahenbuhl, Jamie Gohde, Jamie Barker and Lynn
Dobbert) failed to properly triage two dental service requests that he filed; and dental
services staff (defendants Dr. Michael Brown, Dr. Mann Lee and Morghan Gilson Noth)
failed to provide timely dental services.1 Before the court is defendants’ motion for summary

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I have amended the caption to reflect the correct spellings of defendants’ names.
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judgment. Dkt. #41.
In response to defendants’ motion, plaintiff has agreed that his claims against Frisk,
Rink and Kahenbuhl should be dismissed, dkt. #54 at 1, so I will not discuss those
defendants further. As for the other defendants, plaintiff has failed to present evidence that
Brown, Gohde, Barker, Lee, Noth and Sieber violated his rights under the Eighth
Amendment or state law. Therefore, I will grant summary judgment in favor of those
defendants. However, there is a genuine dispute of material fact as to whether defendants
Dobbert, Fraundorf and Cross acted with deliberate indifference or negligence to his serious
dental needs. Therefore, I will deny the motion for summary judgment as to Dobbert,
Fraundorf and Cross.
From the parties’ proposed findings of fact, I find the following facts to be material
and undisputed unless otherwise noted.

UNDISPUTED FACTS
Plaintiff Samterious Gordon was an inmate at New Lisbon Correctional Institution
at all times relevant to this lawsuit. Defendant Dr. Mann Lee is the dental director for the
Department of Corrections Bureau of Health Services. He makes all staffing and hiring
decisions for dentists, dental assistants and dental hygienists, though the number of staff he
is able to hire is determined by the Division of Adult Institutions Bureau of Health Services
budget. As the dental director, Lee does not triage or assess individual care unless it is
brought to his attention after the fact through an inmate complaint.

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The remaining defendants worked at New Lisbon Correctional Institution during the
relevant time period. Dr. Michael Brown is a dentist; Morghan Gilson Noth is a dental
assistant; Lynn Dobbert and Jamie Gohde were nurse clinicians; Drew Cross was a
correctional sergeant; Joseph Fraundorf and Nicholas Sieber were correctional officers; and
Jamie Barker was the interim health services unit manager from February 2018 to May
2018. Barker was not involved with staffing of dentists or dental hygienists.
On November 7, 2016, a dentist at Dodge Correctional Institution advised plaintiff
that he needed a filling or extraction of an upper right tooth and that he should submit a
dental service request for the work. Plaintiff did not submit any dental service requests for
the tooth until January 19, 2018, after he had been transferred to New Lisbon.
A few days before January 19, 2019, plaintiff’s tooth starting hurting, his mouth was
bleeding, he had headaches and he could not eat or sleep.

On January 19, plaintiff

submitted a dental service request stating that he had been “having trouble” with his back
tooth since “biting a penny” at the county jail, that he was in pain and that he needed
someone to look at it as soon as possible. Dkt. #57-1.
On January 20, 2018, defendant Nurse Dobbert was the only health services staff
member working. She retrieved plaintiff’s dental service request, date-stamped it and triaged
it. When nursing staff triages dental service requests, they review the requests for urgent or
emergent dental problems. If the request is not urgent or emergent, nursing staff forwards
the request to the dentist. Dobbert reviewed plaintiff’s request, decided it was not urgent
or emergent and forwarded it to the dentist. She did not contact plaintiff or offer him any

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pain medication.
After a dental service request is forwarded, the dentist determines if and when a
patient needs to be seen by dental services. In January 2019, a dentist was at New Lisbon
between one and three days a week. Under Division of Adult Institutions policy 500.40.02,
only dentists and registered nurses may determine if and when an inmate requires dental
services. If the dentist is out, a nurse must triage requests for service. Dental assistants and
hygienists are not permitted to triage dental service requests. Dkt. #42-2. They also are not
permitted to prescribe medication.
Defendant Brown received and triaged plaintiff’s dental service request on January
22, 2018. Brown determined that the request did not state an urgent need because plaintiff
was referring to a county jail incident that occurred before 2016 when Dodge Correctional
Institution provided a comprehensive intake dental exam and took x-rays. In addition, there
were no notes in his dental record indicating that plaintiff had reported pain in his back
tooth or requested treatment in 2016 or 2017. On January 22, Brown notified plaintiff that
he would be placed on the routine waiting list, with an approximate wait time of 12 months.
Plaintiff saw a primary physician on February 2, 2018 for other medical problems,
and he did not complain of tooth pain. If he had complained of tooth pain, he would have
been referred directly to dental services and likely would have been seen the same day.
On February 13, 2018, part of plaintiff’s tooth broke. (Plaintiff says he showed his
broken tooth to correctional officers Sieber, Cross and Fraundorf, told them he was in pain
and asked them to contact health services for him, but they refused to do so. Plaintiff says

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defendants responded by stating that they were not dentists and that there was no tooth
fairy at the prison. Defendants deny that plaintiff showed them his broken tooth or asked
for help. They also point to records showing that Sieber was not working on that day.)
On February 13, 2018, plaintiff submitted a dental service request and a health
service request. His health service request stated, “Need dental work on my tooth as soon
as possible because it just fell out, and I’m in a lot of pain and need medication for my pain
right now, so please send me to see the dentist.” Dkt. #57-2. His dental service request
stated that his tooth had fallen out, that he was in serious pain and that he needed to see a
dentist as soon as possible to get the rest of his tooth pulled. Dkt. #57-3. Defendant
Dobbert received the dental service and health service requests on February 14, 2018, and
she routed them to the dentist for triage. Dobbert was not aware that the dentist would not
be at New Lisbon again until February 19, 2018. Dr. Brown was scheduled at other
institutions and Noth, the dental assistant, was on vacation.
Plaintiff was in severe pain from February 14 to February 19. On February 18,
plaintiff submitted an interview and information request, complaining that he had not yet
been seen by a dentist. Brown returned to New Lisbon on February 19, 2018, and reviewed
plaintiff’s dental service requests. Brown classified the request as urgent and scheduled
plaintiff for an appointment the same day. After Brown and plaintiff discussed options,
plaintiff chose to have his tooth extracted. That same day, defendant Gohde responded to
plaintiff’s information request, stating that dental services had responded to his request and
that he would be seen by dental. She also stated that if plaintiff wanted to be seen by a

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nurse, he should submit a health service request.
Plaintiff submitted in inmate complaint on February 21, 2018. After the inmate
complaint examiner contacted defendant Barker, Barker reviewed plaintiff’s medical records
and noted that nursing staff should have assessed plaintiff for pain after reviewing his dental
service requests on January 20 and February 14, even though the requests were forwarded
to dental services. Plaintiff’s complaint was affirmed, with the conclusion that Barker would
direct nursing staff to assess patients for pain when a dentist is not on site.

OPINION
Plaintiff was granted leave to proceed on claims that defendants failed to respond to
his dental needs, in violation of his rights under the Eighth Amendment and state law.

A. Legal Standards
The Eighth Amendment’s prohibition on cruel and unusual punishment “protects
prisoners from prison conditions that cause ‘the wanton and unnecessary infliction of pain,’”
including “grossly inadequate medical care.” Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir.
2014) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). To prevail on a claim
based on deficient medical care, the plaintiff must demonstrate two elements: (1) an
objectively serious medical condition; and (2) an official's deliberate indifference to that
condition. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). The first element, an
objectively serious medical condition, is satisfied if a physician has diagnosed the condition

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as requiring treatment, or the need for treatment would be obvious to a layperson. Pyles,
771 F.3d at 409.

Defendants have not disputed that plaintiff’s dental needs and

accompanying pain were serious medical conditions that required treatment.
The second element of plaintiff’s claim, “deliberate indifference,” is a subjective
standard. Arnett, 658 F.3d at 751. “Deliberate indifference” means that the officials were
aware that the prisoner faced a substantial risk of serious harm but disregarded the risk by
consciously failing to take reasonable measures to address it. Forbes v. Edgar, 112 F.3d 262,
266 (7th Cir. 1997). Defendants deny that they were deliberately indifferent to plaintiff’s
serious medical needs.
To prevail on a claim for negligence in Wisconsin, plaintiff must prove that
defendants breached their duty of care and that he suffered injury as a result. Paul v. Skemp,
2001 WI 42, ¶ 17, 242 Wis. 2d 507, 520, 625 N.W.2d 860, 865. Wisconsin law more
specifically defines medical negligence as the failure of a medical professional to “exercise
that degree of care and skill which is exercised by the average practitioner in the class to
which he belongs, acting in the same or similar circumstances.” Sawyer v. Midelfort, 227
Wis. 2d 124, 149, 595 N.W.2d 423, 435 (1999); Shuster v. Altenberg, 144 Wis. 2d 223,
229, 424 N.W.2d 159, 161-62 (1988).

A. Nurse Dobbert
Defendant Dobbert reviewed a dental service request from plaintiff on January 20,
2018 and dental and health services requests on February 14, 2018. Plaintiff contends that

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defendant Dobbert acted with deliberate indifference and negligence to his serious medical
needs by forwarding his health and dental service requests to the dentist without contacting
him or attempting to assess his pain. Dobbert contends that she exercised her medical
judgment in concluding that plaintiff’s requests did not suggest that he needed urgent or
emergent care.
I agree with Dobbert that plaintiff has not shown that Dobbert acted with deliberate
indifference or negligence in responding to his January 20 dental service request. In that
request, plaintiff wrote that he had been “having trouble” with his back tooth since “biting
a penny” at the county jail. Although plaintiff also wrote that he was in pain and that he
needed someone to look at his tooth as soon as possible, his request suggested that he was
complaining about a long-term problem, not something that was urgent or emergent.
Dobbert’s decision to forward the request to the dentist was reasonable. Moreover, the
dentist agreed with Dobbert’s assessment and agreed that plaintiff did not need to be seen
immediately.
Dobbert’s response to plaintiff’s February 13 dental and health service requests is a
closer question. In those requests, plaintiff reported that part of his tooth had fallen out,
that he was in serious pain, that he needed pain medication and that he needed to see a
dentist as soon as possible. Dobbert forwarded plaintiff’s requests to the dentist, who was
out for the next five days. When Dr. Brown returned and saw the request, he concluded that
plaintiff’s condition was urgent and that plaintiff needed to be seen immediately.
Dobbert contends that her response to plaintiff’s February 13 requests did not

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constitute deliberate indifference or negligence because she did not think plaintiff’s situation
was an emergency, she did not know the dentist was out and she could not have prescribed
pain medication anyway.
Dobbert’s arguments.

However, plaintiff has submitted evidence that undermines

Although Dobbert says she did not know the dentist was out,

Division of Adult Institutions policies state that if a dentist is out, a nurse must assess
inmate requests for dental services. Dobbert does not explain why, if she was responsible
for assessing inmate requests in the dentist’s absence, she did not check the dentist’s
schedule to determine when he would be back at the institution. The same policy defines
“urgent” dental needs as including any condition that could result in undue pain and
suffering, and states that urgent needs should be addressed the same day if possible and
within 72 hours at the latest. Dkt. #57-17 at 3. Although Dobbert says that she did not
think plaintiff’s request qualified as an “emergency” as defined in prison policies, she does
not explain why his request was not “urgent,” or why she failed to at least assess plaintiff’s
condition. Dobbert also says that she is not permitted to prescribe medication, but she does
not explain why she could not provide plaintiff over-the-counter pain medication or refer
him to a medical provider who could have prescribed pain medication for him. Dobbey v.
Mitchell-Lawshea, 806 F.3d 938, 940 (7th Cir. 2015) (medical provider “demonstrates
deliberate indifference by failing to treat the patient promptly, thus prolonging the patient’s
pain, while knowing that the patient may well be in serious pain that is treatable”). For all
of these reasons, I conclude that plaintiff has submitted evidence sufficient to create a
genuine factual dispute as to whether Dobbert was deliberately indifferent or negligent to

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his serious dental needs. Therefore, I will deny the motion for summary judgment as to
Dobbert.

B. Dr. Brown
In contrast to defendant Dobbert, plaintiff has not shown that Dr. Brown acted with
deliberate indifference or negligence to his serious dental needs. Plaintiff contends that
Brown should have seen him immediately after reviewing his January 19 request for dental
services. However, the undisputed evidence shows that Brown placed plaintiff on the list for
routine dental care because plaintiff’s dental service request and dental file did not suggest
that plaintiff needed urgent or emergent treatment. Plaintiff’s dental file showed that
plaintiff had a 2016 dental exam and x-rays showing that he had a problem tooth that
needed a filling or extraction, but his records did not show that plaintiff had reported pain
in 2016 or that he had sought dental treatment during 2016 or 2017. In addition, plaintiff
was complaining about what appeared to be a long-term problem, not something new or
urgent. Therefore, Brown concluded reasonably that plaintiff could wait for treatment. In
addition, plaintiff has not alleged that he suffered in severe pain between January 20, 2018
and February 13, 2018, when he filed his second request for dental services. Instead, the
evidence shows that plaintiff saw a doctor on February 2 and did not mention a broken
tooth, tooth pain or needing pain medication.

Finally, Brown was not deliberately

indifferent or negligent when he reviewed plaintiff’s second dental services request on
February 20.

He reviewed the dental service request, saw plaintiff the same day and

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extracted plaintiff’s tooth. Under these factual circumstances, no reasonable jury could
conclude that Brown acted below the standard of care for a prison dentist or that Brown
knew that plaintiff faced a substantial risk of harm by disregarded it. Therefore, I will grant
the motion for summary judgment as to defendant Brown.

C. Cross, Fraundorf and Sieber
Plaintiff contends that correctional officers Sieber, Cross and Fraundorf violated his
Eighth Amendment and state law rights by failing to contact health or dental services after
he showed them his broken tooth and told them he was in pain. Defendants deny that
plaintiff ever showed them his tooth or requested help. However, accepting as true plaintiff’s
version of events, I conclude that Sieber is entitled to summary judgment, but Cross and
Fraundorf are not.
Defendant Sieber has submitted his time sheet showing that he was not working on
February 13, when plaintiff says he showed Sieber and the other correctional officers his
broken tooth. Plaintiff has submitted no evidence sufficient to undermine Sieber’s time
sheet.
As for Cross and Fraundorf, a jury could conclude that their alleged responses to
plaintiff’s complaints of pain and request for help constituted deliberate indifference or
negligence. Although Cross and Fraundorf are not medical providers and cannot be faulted
for failing to treat plaintiff’s dental condition, they could have contacted health services
about plaintiff’s situation. If a correctional officer knows that a prisoner is in pain and needs

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treatment, the guard has a responsibility to help the prisoner. Dobbey, 806 F.3d at 940
(“[A] guard who is aware of complaints of pain and does nothing to help a suffering prisoner
obtain treatment is likewise exhibiting deliberate indifference. He knows the prisoner may
be suffering and knows whom to call to attend to the matter.”). If Cross and Fraundorf had
contacted health services on plaintiff’s behalf, he might have been assessed and provided
some pain medication until the dentist could see him. Therefore, I will grant the motion for
summary judgment as to Sieber, but will deny it as to Cross and Fraundorf.

D. Barker, Noth, Gohde and Lee
Plaintiff also sued defendants Barker, Noth, Gohde and Lee, but he has submitted no
evidence suggesting that these defendants were personally involved in treating him, could
have intervened to help him obtain treatment or that there were otherwise deliberately
indifferent or negligent. Barker’s only involvement was responding to plaintiff’s inmate
complaint, in which she stated that nursing staff should have assessed plaintiff’s pain.
Gohde’s only involvement was responding to an information request, on the same day that
plaintiff received treatment from Dr. Brown.

Noth had no apparent involvement in

plaintiff’s treatment or in reviewing his dental service requests. Finally, Lee is the dental
director who has supervisory responsibilities over Department of Corrections’ dental staff,
but does not see inmate patients, never saw plaintiff and was not aware of plaintiff’s dental
condition. Therefore, I will grant summary judgment to Barker, Noth, Gohde and Lee.

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ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants Joseph
Fraundorf, Nicholas Sieber, Drew Cross, Koreen Frisk, Bridget Rink, Nicole Kahenbuhl,
Jamie Gohde, Jamie Barker, Lynn Dobbert, Dr. Michael Brown, Dr. Mann Lee and Morghan
Gilson Noth, dkt. #41, is GRANTED IN PART and DENIED IN PART. The motion is
GRANTED with respect to plaintiff Samterious Gordon’s claims against defendants Frisk,
Rink, Kahenbuhl, Brown, Gohde, Barker, Lee, Noth and Sieber. The motion is DENIED
as to plaintiff’s claims against Dobbert, Fraundorf and Cross.

Entered this 18th day of November, 2019.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge

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