Opinion
2:01-CV-0400.
October 29, 2004
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ORDER OF DISMISSAL, AND ORDER DECLARING MOOT PLAINTIFF'S MOTION TO STRIKE
On this day came for consideration the September 17, 2004 Motion for Summary Judgment submitted by defendants PELFREY and JETTON, with the September 28, 2004 Supplemental Documents. Plaintiff filed an untimely response on October 27, 2004 by which he moved to strike defendants' Exhibit A, an affidavit by Dr. Tucker.
By his original complaint and December 26, 2001, response to the Court's Briefing Order Questionnaire, plaintiff recounts the extraction of an infected wisdom tooth, tooth no. 32, contending he suffered a fracture of the root for the adjoining tooth, no. 31, during the extraction. Plaintiff claims defendant Nurse PELFREY refused plaintiff's repeated requests for treatment of the infected molar during November and December of 1999 and defendant Dr. JETTON, a dentist, has refused to give him appropriate dental care for the root fracture since his arrival at the Dalhart Unit.
UNDISPUTED FACTS
Plaintiff, appearing pro se, filed this suit while a prisoner in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) during the time relevant to this cause. Similarly, at all times relevant to this cause, defendants PELFREY and JETTON were employed to render medical services to inmates as a nurse and a dentist, respectively.DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants present evidence and argue plaintiff has failed to present any evidence to support his claim of deliberate indifference. Defendants further contend plaintiff has failed to defeat their entitlement to qualified immunity. Plaintiff points to evidence in the record that arguably contradicts statements and conclusions by Dr. Tucker made in his Affidavit, submitted as Defendants' Exhibit A to their motion for summary judgment. Plaintiff contends his tooth was broken and is now dead, that defendants knew the tooth was broken and chose not to fix it, and that he should be awarded compensatory damages for his pain and for the removal of the dead tooth and installation of a dental implant in its place. Plaintiff also argues Exhibit A, Dr. Tucker's Affidavit, should be stricken from the record.
THE STANDARD OF SUMMARY JUDGMENT REVIEW
Summary judgment may be granted where 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 moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). Consequently, after adequate time for discovery and upon motion, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Because the consequences of summary judgment are so severe, the court must be careful to avoid premature termination of legitimate lawsuits merely because of unskilled presentations. Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980). In determining a movant's request for summary judgment, all reasonable inferences must be made in favor of the party opposing the motion. Phillip's Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987). Only disputes of facts that could affect the outcome of the suit at trial will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A complete failure of proof concerning an essential element of the nonmoving party's case is fatal and entitles the moving party to judgment as a matter of law. Celotex v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Upon such a showing, the burden of production shifts to the nonmovant to delineate specific facts which demonstrate the presence of a genuine issue of material fact. Id.; Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir. 1992). A motion for judgment as a matter of law is properly granted when the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict. If there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors might reach a different conclusion, then the motion for judgment as a matter of law should be denied. Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir. 1996).
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF QUALIFIED IMMUNITY
Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether the plaintiff has asserted a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Analysis at this stage is performed under the "currently applicable constitutional standards." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).
If the initial inquiry is satisfied, the second prong of the qualified immunity test must be considered: whether the constitutional right alleged to have been violated was clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of contemporaneous clearly-established law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998). Although analysis under the first prong requires the court to consider currently applicable constitutional standards, analysis under the second prong requires a court to measure the objective reasonableness of an official's conduct with reference to the law as it existed at the time of the conduct in question. Id. (citing Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993).
Although it may be "difficult to imagine factual circumstances in which a trier of fact could find deliberate indifference as defined by Farmer and nevertheless conclude that a reasonable person in defendant's position was not chargeable with knowledge that his or her actions violated the plaintiff's clearly established constitutional rights," in analyzing a claim of qualified immunity, the test is objective reasonableness, not subjective deliberate indifference. Hare v. City of Corinth, 135 F.3d 320, 328 (1998) (quoting Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328 at 6 (N.D.N.Y.Dec. 16, 1994). Consequently, at the qualified immunity stage, the deliberate indifference standard only allows an examination of whether, under the standard not to be deliberately indifferent, the acts or omissions of the defendant were objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998).
Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994).
ANALYSIS OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants argue the undisputed summary judgment evidence shows plaintiff received regular treatment of his dental needs and not deliberate indifference. Moreover, defendants contend, plaintiff has not shown their actions were objectively unreasonable in light of clearly established Eighth Amendment law and, therefore, they are entitled to qualified immunity.
Defendants have produced plaintiff's dental records for the relevant period as Exhibit B to their motion for summary judgment. A properly-executed business records affidavit was submitted on September 28, 2004, as part of defendant's supplementation. Plaintiff does not dispute the accuracy of the dental records produced by defendants and only contests the admission of Dr. Tucker's Affidavit, Exhibit A.
Review of the dental records submitted as Exhibit B to defendants' motion for summary judgment reveals plaintiff's right wisdom tooth, tooth No. 32, was treated with antibiotics for pericornitis, inflammation of the flap of skin surrounding an incompletely erupted or impacted tooth, on May 14, 1998 (p. 7 of Ex.B). By May 21, 1998, plaintiff was found to have improved (p. 7 of Ex.B).
All references to Exhibit B are to Exhibit B attached to defendants' motion for summary judgment.
Plaintiff's next complaint about his wisdom tooth was on November 7, 1999, when he was told to return for a scheduled evaluation by the dentist (p. 8 of Ex.B). Plaintiff came back November 9, 1999 complaining of swelling along with the pain and was given the same response (p. 8 of Ex.B).
Initially, the Court notes plaintiff attributes the November 7, 1999 and November 9, 1999 incidents to defendant PELFREY, though his medical records contain entries by a Nurse Aguilar recounting the activity discussed above. Plaintiff does not explain this apparent contradiction nor does he contest Nurse Aguilar's account of activity on those dates. Nevertheless, accepting plaintiff's claims that defendant PELFREY refused him medication and treatment on November 7th and 9th, plaintiff alleges no fact to show that this refusal constituted deliberate indifference to a serious medical need. Plaintiff's records show this tooth was a problem of long standing and had been infected before, with treatment by antibiotics. Given the uncontested evidence that plaintiff was informed he was to return for a scheduled evaluation by the dentist, there is nothing to indicate Nurse PELFREY's failure or refusal to provide immediate treatment constituted deliberate indifference or was an unreasonable response to plaintiff's complaints.
On November 12, 1999, plaintiff continued to complain of pain and swelling and, after a telephone call to the dentist, he was told by Nurse Aguilar he would be seen by the dentist the next week and to continue on his antibiotics (p. 8 of Ex.B). Plaintiff was seen on November 16, 1999 by dentist Dr. Reinecke, who extracted tooth #1, the tooth directly above the impacted wisdom tooth (p. 8 of Ex.B). Plaintiff alleges Dr. Reinecke pulled tooth #1 in order to relieve pressure on tooth #32. He scheduled a return visit for plaintiff for extraction of tooth #32, the wisdom tooth (p. 8 of Ex.B).
Plaintiff alleges he returned on November 17, 1999 and complained to defendant PELFREY of pain and swelling and was told to go back to work or receive a case. Given that plaintiff was to be scheduled for extraction of tooth #32, that the problems he complained of could not end until after extraction of that tooth, that plaintiff had just seen the dentist the day before and was being treated as prescribed by the dentist, and that plaintiff's complaint did not indicate any change in his condition since being seen by the dentist, defendant PELFREY's refusal to provide additional care did not constitute deliberate indifference, and was a reasonable response to plaintiff's dental needs.
Plaintiff further alleges that, on November 21st, he went to the medical department because the infection had spread to his ear and that, on November 25th, he was started on antibiotics.
Plaintiff's dental records show that, on November 26, 1999, he complained of pain and discomfort, saying he didn't feel the antibiotics were working. Nurse Aguilar told plaintiff to return to the clinic for a scheduled evaluation by the dentist (p. 8 of Ex.B).
Plaintiff alleges he was taken to the emergency room on November 28th because of swollen jaw, tongue and ear. He says tooth #32 was extracted by a Dr. Mamous on November 29, 1999.
The date of extraction is not shown in plaintiff's dental records. Plaintiff alleges it was during this extraction that the root to #31 was broken.
Plaintiff's records show that, on December 1, 1999, plaintiff was a walk-in complaining of pain and swelling at the extraction site of tooth # 32. A "Pano" was taken, a panoramic x-ray around the entire jaw, and plaintiff was examined. No tooth fragments or exudate were found, and the sutures were intact. It was noted that plaintiff was taking his medications for pain and infection. He was given an ice pack, a rinse to use every eight hours, and instructed to follow up with the unit dentist on his arrival (p. 8 of Ex.B).
On December 3, 1999, plaintiff was seen by Dr. Reinecke who noted a "possible distal root fracture #31 or residual tooth fragment #32." He further noted it was "hard to determine if it's a fragment of #32 or a shear fracture of #31, will wait for swelling to subside and re-eval." (p. 6 of Ex.B). On December 6, 1999, Nurse PELFREY noted plaintiff continued to complain of infection and pain but examination showed the infection was resolving with minimal sites of inflammation and infection. PELFREY notified Dr. Reinecke who authorized renewal of plaintiff's pain medications, and plaintiff was placed on the next dental chain (p. 6 of Ex.B). Plaintiff was seen by Dr. Reinecke on December 10th and was given an expedited referral to UTMB for evaluation of possible extraction of tooth #31 (p. 6 of Ex.B).
When plaintiff returned to the unit that day, he complained to Nurse PELFREY of continued pain. PELFREY contacted Dr. Reinecke who authorized Ibuprofen for ten days or until plaintiff was seen at UTMB (p. 6 of Ex.B). A chart review was conducted January 12, 2000 by a J. Bielstein who noted the need to schedule an appointment for plaintiff "ASAP;" however, the entire unit was placed on Lockdown Status that day (p. 6 of Ex.B). On January 18th, plaintiff complained of pain and stated he felt he had been denied medical care (p. 6 of Ex.B).
On January 25, 2000, plaintiff was again seen by Dr. Reinecke who noted the x-rays revealed three possibilities but that the most recent x-ray, which had been made that same day, revealed a "continuous distal root." Doctor Reinecke noted he was forwarding the films and documentation to "Endo" for evaluation of tooth #31 (p. 5 of Ex.B).
On February 7, 2000, plaintiff complained of severe pain. He was seen by a Dr. Nethery the next day. Doctor Nethery noted plaintiff's pain medication had expired the previous day. On examination, Dr. Nethery found no mobility of #30 and #31, no swelling, neither tooth was tender to percussion, and plaintiff's occlusion seemed normal. Doctor Nethery noted the x-ray showed a fracture of the distal root of #31 and also showed a severe curve of the mesial root. Doctor Nethery recommended extraction of the tooth, stating he or she did not believe endodontic treatment, a root canal, was an option "due to root fracture and anatomy." Doctor Nethery further recommended that plaintiff stop taking aspirin and Tylenol and opined that some of his symptoms may be due to the Tylenol #3. Doctor Nethery further noted plaintiff refused the recommended extraction of tooth #31 and prescribed motrin and a mouth rinse (p. 5 of Ex.B).
On February 17, 2000, plaintiff complained of continued pain and was given a renewal of his pain medication (p. 4 of Ex.B). A notation was made to check whether further endodontic evaluation was pending. On February 24th, Dr. Nethery called and authorized continued pain medication but stated there was no need for plaintiff to return for further evaluation (p. 4 of Ex.B).
Plaintiff was seen by a dentist, Dr. Kevin McCarver, on March 3, 2000, for complaints of pain at the extraction site. After examination, the dentist opined that the extraction had probably inflamed tooth #31 and the blood supply to the root may be damaged. He explained the possibility that healing of the tooth would be speedy or lengthy and that the tooth might not heal at all. He wrote, "Only time will tell if tooth is healing normal." Plaintiff stated he wanted to wait and did not want to lose the tooth. The dentist also explained that TDCJ would not authorize a root canal for a molar (p. 4 of Ex.B). Doctor McCarver noted there was no treatment plan at that time (p. 3 of Ex.B). A chart review was conducted on April 5, 2000, with the notation of no medications (p. 35 of Ex.B).
On June 10, 2000, plaintiff requested tooth cleaning and, on June 21st, was given routine dental work. Plaintiff's x-rays were unremarkable and the sensitivity he experienced on tooth #31 was attributed as possibly being the result of tooth decay on the tooth beside it, tooth #30 (p. 3 of Ex.B).
Plaintiff's teeth were cleaned on July 22, 2000 and September 22, 2000, (p. 3 of Ex.B). Plaintiff next complained of pain on August 28, 2001. He was seen by Dr. JETTON the next day and complained of a broken root at tooth #31. Doctor Jetton noted plaintiff said he was told of this break by four different dentists. Doctor JETTON further noted that the panorex taken of plaintiff on June 21, 2000 did not "reveal any `broken root' [and] tooth is not sensitive to percussion or any kind of palpation (p. 2 of Ex.B)." Doctor JETTON scheduled plaintiff for a return for "TP review."
On September 20, 2001, plaintiff was seen by JETTON again for "TP review." He noted plaintiff was still talking about a root fracture of #31 and blood supply being cut off to it; however, JETTON remarked that there was no evidence at that time (p. 2 of Ex.B).
On October 9, 2001, Dr. JETTON noted,
There is an artifact on Pa taken on 2-8-00. It is vertical in nature, cutting across until root giving the appearance of a fracture; the Pax taken 6-21-00 is void of artifacts and shows no fracture. If the root were broken, as inmate believes, the tooth would be abscessed due to loss of blood supply. (p. 1 of Ex.B).
On October 29, 2001, Dr. JETTON noted plaintiff reported his mother had talked to Dr. Nethery and was told plaintiff had a fractured root. Plaintiff demanded Ibuprofen; however, Dr. JETTON refused, saying there was no need for medication. (p. 1 of Ex.B).
By his October 27, 2004 response to defendants' motion for summary judgment, plaintiff states his tooth #31 is now dead, having taken two years to die. Plaintiff does not state how he knows the tooth is now dead, but the Court accepts the truth and accuracy of his statement.
Nevertheless, plaintiff's dental records reveal no basis for a claim of deliberate indifference by defendant JETTON and, in fact, affirmatively disprove it by showing defendant JETTON gave careful consideration to plaintiff's claim of a broken root at tooth #31 but rejected that possibility based on later x-rays. Plaintiff clearly disagrees with JETTON's diagnosis of his condition and now appears to be correct. However, the Court notes that, even if plaintiff's tooth #31 is broken, he has refused the treatment recommended by the endodontic specialist, Dr. Nethery. Doctor Nethery is the dentist who first diagnosed the root fracture and who evaluated whether a root canal was appropriate. Doctor Nethery noted at that time there was also a "severe curve of the mesial root" and recommended extraction of the tooth, opining a root canal was not an option "due to root fracture and anatomy." Plaintiff rejected Nethery's offer to extract the tooth. Therefore, even if JETTON had thought the root was fracture, plaintiff had already rejected the recommended treatment.
Plaintiff's dental records, reviewed above, demonstrate he received regular and responsive treatment for his dental complaints and that his claims against defendants JETTON and PELFREY spring from his disagreements with them; however, a prisoner's disagreement with prison officials regarding medical treatment is insufficient to establish an unconstitutional denial of medical care. Norton v. Dimanzana, 122 F.3d 286, 292 (5th Cir. 1997). A disagreement with a doctor over the method and result of medical treatment require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991).
As defendants argue, the review of plaintiff's dental records, the accuracy of which plaintiff has not contested, rebuts his contentions of deliberate indifference. Further, the records reviewed above demonstrate the defendants' actions were objectively reasonable with respect to plaintiff's complaints and the dental needs he presented. Therefore, the defendants have shown themselves to be entitled to qualified immunity.
CONCLUSION
For the reasons set forth above, it is clear that, drawing all reasonable inferences in favor of the nonmoving party, there is no material issue of disputed fact which precludes entry of summary judgment for defendants PELFREY and JETTON; and defendants PELFREY and JETTON are entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c)
IT IS HEREBY ORDERED that the motion for summary judgment of defendants PELFREY and JETTON is GRANTED and plaintiff BILLY SHAWN CHAUNCEY's claims against defendants PELFREY and JETTON in their individual capacities are DISMISSED WITH PREJUDICE. To the extent plaintiff attempts to assert any claims based in state law and tort law, the Court declines to exercise pendent jurisdiction and such claims are DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
By Order of Partial Dismissal issued June 10, 2004, plaintiff's Civil Rights Claims against defendants RENICKE, MAMOUS, and UNIDENTIFIED DEFENDANTS were dismissed for failure to state a claim on which relief can be granted. Further, plaintiff's claims for monetary relief against defendants PELFREY and JETTON in their official capacities were dismissed as frivolous.
In light of the Court's failure to consider defendants' Exhibit A to their summary judgment motion, Dr. Tucker's Affidavit contested by plaintiff, plaintiff's motion to strike is MOOT, and no further ruling will issue.
The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail.
IT IS SO ORDERED.