Opinion
4:21-cv-468-DPM
09-14-2022
ROBERT WILIAM AVERY ADC #652373 v. JESSICA JACKSON BREEDLOVE, Dentist, Stringfellow Dentistry PLAINTIFF DEFENDANT
ORDER
D.P. Marshall Jr. United States District Judge.
On de novo review, the Court adopts Magistrate Judge Kearney's recommendation as supplemented, Doc. 68, and mostly overrules Avery's objections, Doc. 73. FED. R. ClV. P. 72(b)(3). The Court agrees with Avery that there is a genuine dispute of fact about whether he told Dr. Breedlove, as early as February 2020, that he was experiencing pain in tooth eleven and needed a filling. Compare Doc. 73 at 7, Doc. 62 at 35-37 & Doc. 58-2 at 28-29; with Doc. 58 at ¶ 8. If this Court considered tooth eleven in isolation, then fact questions about a months-long delay in treatment would make summary judgment improper. E.g., Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004). But focusing on tooth eleven alone would be legal error because the Court must consider the whole record in evaluating whether this case presents a question of fact for the jury. E.g., Johnson v. Leonard, 929 F.3d 569,576-78 (8th Cir. 2019). Dr. Breedlove treated Avery during the relevant period-January through July 2020. Avery must therefore show that Dr. Breedlove's misdiagnosis was so clearly wrong that it amounted to criminally reckless conduct. Ibid.; Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015). The evidence doesn't support that inference. Dr. Breedlove focused on tooth five, which was in worse shape. Avery challenges the wisdom and effectiveness of the treatment he received. In hindsight, Dr. Breedlove should have done more on tooth eleven sooner. That circumstance, however, does not mean that Dr. Breedlove was deliberately indifferent. E.g., Avery v. Turn Key Health Clinics, LLC, at *6 (W.D. Ark. 12 February 2020), affd, 839 Fed.Appx. 26 (8th Cir. 2021) (unpublished per curiam).
Avery's motion for summary judgment, Doc. 47, is denied; Dr. Breedlove's cross-motion for summary judgment, Doc. 57, is granted. Avery's claims against Dr. Breedlove that were raised in grievances WHM20-00084, WHM20-00087, and WHM20-00091 will be dismissed with prejudice.
Avery's motion for a status update, Doc. 74, is granted in part and denied in part. The Court directs the Clerk to send Avery a copy of the docket sheet in this case, along with this Order and the accompanying Judgment. He already received updates in the other cases listed in his motion.
So Ordered.