David v. Crow et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JEROME ADRIAN DAVID, 	)
)
Plaintiff, 	)
) 	CIV-21-534-SLP
v. 	)
)
SCOTT CROW, et. al., 	)
)
Defendants. 	)
SIXTH SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings
this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional
rights. Before the Court is the Motion to Dismiss filed by Defendants T. Hastings
Siegfried and Tammy Foster, Doc. No. 71, 1 to which Plaintiff has responded. Doc.
No. 115. 2 The matter has been referred to the undersigned Magistrate Judge for
initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following
reasons, it is recommended the Motion to Dismiss, converted to a Motion for
1 Defendant Linda Eike was also a party to the current Motion. However, the
undersigned previously recommended dismissal of Plaintiff’s claims against her. Doc.
No. 85 at 50.
2 Plaintiff entitled his Response, “Motion in Response to Defendants [sic] Motion to
Dismiss.” Doc. No. 115. As this was then docketed as a Motion on which the Court
should rule, rather than a Response, the Court should deny the “Motion” as moot.
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Summary Judgment, be granted.
I. Plaintiff’s Claims
This case arises from Plaintiff’s allegations that while he was incarcerated
at William S. Key Correctional Center (“WKCC”) located in Fort Supply,
Oklahoma, Defendants violated his constitutional rights. See generally Doc. No.
23. Plaintiff’s claims against Defendants Foster and Hastings Siegfried arise from
the dental care he received while at WKCC.
Defendants have filed a Motion to Dismiss wherein they request dismissal
of Plaintiff’s claims. Doc. No. 71. Because Defendants rely, in part, on evidentiary
documents outside of the pleadings in support of their Motion, and Plaintiff was
advised of his responsibilities under Fed. R. Civ. P. 12 and 56 in responding to
Defendants’ Motion, see Doc. No. 65, the Motion will be considered as one
seeking summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859
n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise
when a judge converts a 12(b)(6) motion into a Rule 56 motion.”); Brown v.
Zavaras, 63 F.3d 967, 969 (10th Cir. 1995) (explaining that courts may convert
motion to dismiss into motion for summary judgment in order to consider matters
outside of the pleadings); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir.
1987) (“[W]hen a party [relies upon] material beyond the pleadings in support of
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. . . a motion to dismiss, the prior action on the part of the part[y] puts them on
notice that the judge may treat the motion as a Rule 56 motion.”).
II. Standard of Review
A. Summary Judgment
Summary judgment may only be granted when there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the
Court reviews the evidence and inferences drawn from the record in the light most
favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d
1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Material facts are “facts that might affect the outcome of the suit under the
governing law . . . .” Id. “At the summary judgment stage, a complainant cannot
rest on mere allegations, but must set forth by affidavit or other evidence specific
facts, which for purposes of the summary judgment motion will be taken to be
true.” Burke, 462 F.3d at 1258 (quotations omitted). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there
is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
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475 U.S. 574, 587 (1986) (quotations omitted).
B. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking
relief against a governmental entity or an officer or employee of a governmental
entity or by parties proceeding in forma pauperis. 28 U.S.C. §§ 1915(e)(2)(B);
1915A(a). After conducting an initial review, the court must dismiss a complaint
or any portion of it presenting claims that are frivolous, malicious, fail to state a
claim upon which relief may be granted, or seek monetary relief from a defendant
who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's
allegations as true and construe them, and any reasonable inferences to be drawn
from the allegations, in the light most favorable to the plaintiff. 	Kay v. Bemis,
500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant’s pleadings are
liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is
on the plaintiff to frame a ‘complaint with enough factual matter (taken as true)
to suggest’ that he or she is entitled to relief.” 	Robbins v. Oklahoma, 519 F.3d
1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). The allegations in a complaint must present “enough facts to
state a claim to relief that is plausible on its face.” 	Twombly, 550 U.S. at 570.
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Further, a claim is frivolous “where it lacks an arguable basis either in law or in
fact” or is “based on an indisputably meritless legal theory.” Neitzke v. Williams,
490 U.S. 319, 325, 327 (1989).
III. 	Exhaustion of Administrative Remedies
Defendant Hastings Siegfried contends Plaintiff failed, prior to filing this
action, to exhaust administrative remedies through the Oklahoma Department of
Corrections’ (“ODOC”) grievance procedure. Proper exhaustion of administrative
remedies is mandated by the Prison Litigation Reform Act (“PLRA”), which
provides that a prisoner cannot bring an action “with respect to prison conditions
under [§] 1983 . . . until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a); see also Ross v. Blake, 578 U.S. 632, 640
(2016) (“[T]he history of the PLRA underscores the mandatory nature of its
exhaustion regime.”); Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no
question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.”).
The exhaustion doctrine protects administrative agency authority and
promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the
exhaustion doctrine is an affirmative defense, the defendants “bear the [initial]
burden of asserting and proving that the plaintiff did not utilize administrative
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remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once the
defendant demonstrates a plaintiff has failed to exhaust his administrative
remedies, “the onus falls on the plaintiff to show that remedies were unavailable
to him[.]” Id.
Further, 	“substantial 	compliance 	[with 	the 	grievance 	procedure] 	is
insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir.
2007). Proper exhaustion requires compliance with all of the prison’s grievance
procedures, including adherence to “deadlines and other critical procedural
rules[,] because no adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at
90-91. Thus, “[a]n inmate who begins the grievance process but does not complete
it is barred from pursuing a § 1983 claim[.]” Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002).
There 	is 	no 	exception 	to 	the 	exhaustion 	requirement 	for 	“special
circumstances.” Ross, 578 U.S. at 638-40 (discussing mandatory language means
a court may not excuse a failure to exhaust, even to take special circumstances
into account) (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that
“[t]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial
discretion”)). Thus, if administrative remedies are available, an inmate must
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complete each step of the administrative process before a federal court can
consider the merits of the inmate’s complaint based on alleged violations of
constitutional rights.
IV. Grievance Procedure for Oklahoma Inmates
The ODOC’s grievance procedure is clearly set forth in the ODOC
Inmate/Offender Grievance Process OP-090124. Doc. No. 64-1.3 Initially, a
prisoner must seek to resolve any complaint by informally raising the matter with
an appropriate staff member. Id. at 7-8. If the matter is not resolved informally,
the prisoner must submit a request to staff within seven calendar days of the
incident, raising only one issue therein. Id. at 8.
If the request to staff does not successfully resolve the issue, the prisoner
must submit a formal grievance form, with a copy of the request to staff attached,
to the appropriate facility reviewing authority within 15 calendar days from the
date of the response to the request to staff, and can only raise one issue. Id. at 9-
11. The reviewing authority will assign a number to each grievance received and
will generally answer the grievance within 20 days of its receipt. Id. at 11-12. If
3 ODOC amended its Grievance Process effective January 18, 2022. Doc. No. 62-18.
The previous version, submitted as Exhibit 1 to Defendants’ Motion to Dismiss, was in
effect during all times relevant to Plaintiff’s claims. Doc. No. 64-1. Therefore, the Court
will refer only to the previous version herein.
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the reviewing authority denies the grievance at the prison level, a prisoner must
appeal the decision to the Administrative Review Authority (“ARA”) within 15
days of receipt of the same to complete exhaustion of his administrative remedies.
Id. at 13-15.
When inmates face an emergency or have a sensitive grievance as defined
in OP-090124, they can file a grievance directly to the reviewing authority (or to
the ARA, if the emergency or sensitive grievance involves the reviewing
authority) without attempting to informally resolve the dispute. Id. at 16-18. The
reviewing 	authority 	must 	determine 	within 	twenty-four 	hours 	whether 	the
grievance is of a sensitive nature or requires emergency handling. Id. at 17. If the
reviewing authority decides the matter does not involve a true emergency or a
sensitive topic, the inmate must restart the administrative process by trying to
informally resolve the dispute and resubmitting the grievance. Id. at 18.
V. Plaintiff’s Utilization of the Grievance Process
Plaintiff alleges that Defendant Hastings Siegfried violated his Eighth
Amendment rights by promulgating dental care policies that resulted in delays of
dental care treatment. Doc. No. 23-3 at 6-7. He also alleges Defendant Hastings
Siegfried provided inadequate dental staff to WKCC as there was only one dentist
and one dental assistant to provide dental care in a facility with over 700 inmates.
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Id. 	Plaintiff asserts Defendant Foster violated his Eighth Amendment rights by
placing him on a treatment plan that required a plaque test and failing to follow
up to ensure a plaque test was performed. Id. at 5. Plaintiff contends this resulted
in his being denied emergency dental treatment, and undergoing tooth extractions
that would have otherwise been avoidable. Id.
On January 5, 2021, Plaintiff submitted a Request to Staff in which he
stated that he wanted to receive dental implants to replace any additional teeth
that he loses. Doc. No. 62-25 at 2-3. On January 12, 2021, Defendant Tammy
Lauer responded, explaining the requirements to be met under ODOC policy to
qualify for dentures and informing Plaintiff that ODOC does not perform dental
implants. Id. at 2. On January 21, 2021, Plaintiff submitted a Grievance explaining
that on December 3, 2020, he saw a WKCC dentist who told him that the solution
to his dental pain and suffering was to remove his remaining teeth. Id. at 4.
Plaintiff further explained that when he challenged this recommendation, the
dentist scheduled an appointment for Plaintiff to return to take a plaque test to see
if he could qualify for restorative treatment. Id. at 5. Plaintiff complained that said
test had still not occurred. Id. On January 28, 2021, Defendant Foster answered
the Grievance, explaining that in the interim since Plaintiff submitted his
Grievance, the WKCC dental staff performed a plaque test and it indicated that
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he did not yet qualify for restorative treatment. Id. at 6.4
On February 2, 2021, Plaintiff appealed the response to his Grievance. Id.
at 7-8. Therein, he explained the history of his dental care at WKCC thus far, set
out above. Id. He also complained that the WKCC dentist was not considering
other factors making his dental condition worse, including being provided a
nutritionally poor diet. Id. at 8. Plaintiff mentioned being told that ODOC does
not supply implants. Id. He further stated, “The CHSA Tammy Foster made an
error in her decision that could be grounds for reversal see [Okla. Stat. tit. 59,
§328.19] (Acts constituting practice of dentistry – Acts not prevented) (A,), (4),
(14).” Id. However, Plaintiff never explained the error he intended to reference.
Id.
On April 12, 2021, Medical Services Manager Cheri Atkinson responded
to Plaintiff’s appeal stating the following, in relevant part:
Request:
“The CHSA Tammy Foster made an error in her decision that could
be grounds for reversal see [Okla. Stat. tit. 59, § 328.19] . . .”
4 ODOC policy requires that prior to receiving restorative treatment, there must be
documented compliance with a prescribed oral hygiene regimen, “as indicated by a
documented plaque index of 35% or lower on at least two occasions separated by a two
week minimum time frame, for inmates who will retain any natural teeth.” Doc. No. 62-
14 at 7. On Plaintiff’s plaque test performed on January 28, 2021, he scored 43.1%. Doc.
No. 62-25 at 6.
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Response:
The 	department’s 	chief 	dental 	officer, 	Paul 	Haines, 	D.D.S.,
investigated your dental concerns. Dr. Haines concluded that you are
receiving dental care and treatment in accordance with OP-140124.
According to OP-040124, in part, any specialized dental procedure,
including implants and treatment associated with implants are not
available through the Oklahoma Department of Corrections.
Id. at 10. 5
VI. Plaintiff’s Failure to Exhaust
As illustrated above, prior to filing this lawsuit, Plaintiff did not complete
the administrative process as to his Eighth Amendment claims against Defendants
Hastings Siegfried and Foster. As previously noted, Plaintiff’s claims against
Defendant Hastings Siegfried are based on allegations that he promulgated dental
care policies that resulted in delays of dental care treatment and provided
inadequate dental staff to WKCC. Doc. No. 23-3 at 6-7. With regard to Defendant
Foster, Plaintiff alleges she placed him on a treatment plan that required a plaque
test and failed to follow up to ensure a plaque test was performed. Id. at 5.
In 	reviewing 	the 	record, 	it 	is 	clear 	Plaintiff 	did 	not 	submit 	any
administrative filings related to his Eighth Amendment claim that Defendant
5 Plaintiff submitted additional administrative filings related to dental care, however,
those were submitted after Plaintiff was transferred to another facility and pertained to
the dental care he received at that facility. Doc. No. 62-27; Doc. No. 62-28.
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Hastings Siegfried failed to provide an adequate number of dental staff to WKCC.
Additionally, while Plaintiff mentions some dental policies, he did not indicate in
his administrative filings how the policies were resulting in delayed dental care.
Indeed, in his Response to Defendants’ Motion, Plaintiff admits that Defendant
Hastings Siegfried did not receive his own notice of Plaintiff’s allegations
regarding harmful dental care policies until he was served with Plaintiff’s lawsuit.
Doc. No. 115 at 3, 4, 17. With regard to Defendant Foster, though he mentioned
in a Grievance that she made a reversible error, Doc. No. 62-25 at 8, he never
explained that error or noted that she failed to follow up on scheduling his plague
test.
“Controlling precedent supports the proposition that an inmate does not
exhaust his administrative remedies by filing a grievance which does not bring to
the attention of prison officials the policy, conditions, or incidents that provide
the basis for his claims.” Sanders v. Williams, No. CIV 08–0895 JB/WPL, 2010
WL 1631767, at *14 (D.N.M. March 30, 2010) (citing Jones v. Bock, 549 U.S. at
219 (quoting language from the Fifth Circuit that “the primary purpose of a
grievance is to alert prison officials to a problem”). Because the record shows that
Plaintiff did not pursue administrative remedies pertaining to his claims against
Defendant Hastings Siegfried regarding policies and staffing, and his claims
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against Defendant Foster regarding an alleged failure to schedule and/or follow
up on his plaque test, Defendants were not put on notice of, and could not
investigate, those problems. Bock, 549 U.S. at 219. Plaintiff, therefore, failed to
exhaust his administrative remedies as to these claims. Howard, 534 F.3d at 1245.
Accordingly, the Court should grant summary judgment in favor of Defendants
based on Plaintiff’s failure to exhaust administrative remedies.
VII. Eighth Amendment
Alternatively, presuming without deciding that Plaintiff exhausted his
administrative remedies with regard to his claims against these Defendants,
Plaintiff’s 	claims 	fail 	on 	their 	merits. 	To 	successfully 	allege 	an 	Eighth
Amendment deliberate indifference claim, a plaintiff must present sufficient
allegations to satisfy a two-prong test. First, the plaintiff must satisfy an objective
component showing that the deprivation suffered was “objectively sufficiently
serious” to implicate Eighth Amendment protections. Second, the plaintiff must
allege allegations that the defendant had a sufficiently culpable state of mind or
was “deliberately indifferent” to the inmate’s safety. Farmer, 511 U.S. at 834;
Wilson v. Seiter, 501 U.S. 294, 298-99 (1991); Garcia v. Salt Lake Cty., 768 F.2d
303, 307 (10th Cir. 1985). “Deliberate indifference” is defined as knowing of and
disregarding an excessive risk to an inmate’s health or safety. Farmer, 511 U.S.
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at 827; Estelle, 429 U.S. 97, 104-05.
A. Objective Component
The objective component of the aforementioned test is satisfied “if the
condition has been diagnosed by a physician as mandating treatment or . . . is so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotations
omitted). The Tenth Circuit has reiterated in recent years that the objective
component is satisfied where a prisoner demonstrates he suffered unnecessary
pain associated with delay in receiving medical care. McCowan v. Morales, 945
F.3d 1276, 1291 (10th Cir. 2019) (explaining that officer’s delay in getting
prisoner to detention center resulting in several hours of excruciating pain
associated with his shoulder injury was sufficient to satisfy the objective prong of
the deliberate indifference test); see also Stack v. McCotter, 79 F. App’x 383, 389
(10th 	Cir. 2003) 	(“Under 	circuit 	precedent, 	pain 	itself 	can 	be 	considered
substantial harm resulting from delay, giving rise to a cause of action for
deliberate indifference.”); Sealock v. Colorado, 218 F.3d 1205, 1210 n.5 (10th
Cir. 2000) (holding that, although defendant prison official did not cause inmate’s
heart attack, “there is factual evidence from which a jury could conclude that the
delay occasioned by his inaction unnecessarily prolonged appellant’s pain and
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suffering”).
B. Subjective Component
To satisfy the subjective component of the test for deliberate indifference
to his serious dental pain, Plaintiff must demonstrate Defendant “kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety,” Sealock, 218 F.3d at
1209 (quoting Farmer, 511 U.S. at 837), or as in Sealock, they knew of and
disregarded Plaintiff’s excessive pain. Defendant must have been aware of “facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Whether a
prison official had the requisite knowledge of an inmate’s severe pain is a question
of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence, and a factfinder may conclude that a prison official knew
of a substantial risk from the very fact that the risk was obvious. Id. at 842.
VIII. Dental Care Policy
According to the ODOC policy, when an inmate arrives at an assessment
and reception center, a dentist will perform dental screening on each inmate and
assign a priority classification code. Doc. No. 62-14 at 4. The initial examination
shall include “instructions on dental hygiene, oral disease education and self-care
instruction[.]” Id. Upon examination, an inmates’ dental care needs are classified
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within Priority I-V. Id. at 5-7. Priority I requires the most immediate attention,
defined as “[g]ross pathosis of the oral cavity that may provide an immediate
threat to the inmate’s health,” and Priority V includes inmates who “do not
demonstrate a current need or have no desire for dental health care.” Id. at 5, 7.
Priority I dental care will be provided at the assessment and reception center. Id.
at 5. After transfer, the new facility’s dentist will perform another examination,
develop a treatment plan, and provide other classes of care. Id.
Relevant to the present case, ODOC policy describes Priority II as
“[p]athosis of the oral cavity that may not provide an immediate threat to the
inmate’s health, but in the dentist’s opinion, if left untreated for three to six
months will become a Priority I problem.” Id. at 6. Priority II may include
“[a]dvanced carious lesions or teeth that have lost restorations . . . [t]eeth for
which routine restoration is not a terminal treatment, and therefore endodontics or
extraction is required[.]” 	Id. 	By contrast, Priority III may include routine
restorative dentistry. Id. ODOC policy also provides that Priority III periodontal
treatment may proceed in conjunction with Priority II treatment. Id. at 7. ODOC
policy requires that prior to receiving Priority III treatment, there must be
documented compliance with a prescribed oral hygiene regimen, “as indicated by
a documented plaque index of 35% or lower on at least two occasions separated
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by a two week minimum time frame, for inmates who will retain any natural
teeth.” Id. at 7.
IX. Defendant Hastings Siegfried
In 	his 	Complaint, 	Plaintiff’s 	allegations 	against 	Defendant 	Hastings
Siegfried regarding policy are vague, primarily asserting in conclusory fashion
that ODOC’s dental care policy did not comply with ODOC and or State standards
of providing dental care to WKCC inmates and/or did not allow for adequate
dental care in general. Id. at 6-7. In his Response to Defendants’ Motion, Plaintiff
clarifies his claims against Defendant Hastings Siegfried. Therein, he argues that
Defendant’s policies resulted in an inability for him to receive restorative
treatment that previous dentists had determined was necessary, as opposed to
undergoing extractions. Doc. No. 115 at 7.
Pursuant to ODOC policy, supra, while at Lexington Assessment and
Reception Center (“LARC”), Dr. Dustin Watterson performed an initial dental
examination on Plaintiff on November 13, 2021. Doc. No. 63-1 at 90. Dr.
Watterson noted Plaintiff had ten missing teeth, existing restoration on eight teeth,
and needed restoration on eleven teeth. Id. Dr. Watterson categorized Plaintiff’s
dental needs as Priority II. Id. As previously noted, Priority II includes advanced
tooth decay and teeth for which routine restoration is not adequate treatment and,
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therefore, endodontics or extraction is required. Doc. No. 62-14 at 6. Based on
Plaintiff’s Response, it appears that the primary basis for his claim against
Defendant Hastings Siegfried is that he did not receive solely restorative treatment
following his LARC evaluation and instead, has experienced multiple tooth
extractions. Doc. No. 115 at 4, 5, 7. While Dr. Watterson does note “Restoration
Indicated” 	and 	lists 	several 	teeth, 	he 	clearly 	categorized 	Plaintiff’s 	dental
condition as Priority II. Thus, contrary to Plaintiff’s repeated assertions in his
Response, 	see 	Doc. No. 115 at 4, 5, there is nothing in Dr. Watterson’s
examination record indicating that Plaintiff should only receive restorative
treatment or that none of his teeth warranted extraction.
Plaintiff also discusses delays in receiving his plaque tests, as required by
policy in order to receive restorative dental care. Doc. No. 115 at 10-13. As
evidenced 	by 	Plaintiff’s 	own 	allegations, 	however, 	the 	delays 	Plaintiff
experienced in this regard were contrary to, not in accordance with, ODOC’s
dental care policy.
Specifically, Plaintiff asserts that Defendant Aitson examined his teeth in
early December 2020 and screened him as “priority III per OP-140124 #3
(periodontal disease, mesial decay, severe cavities, etc.).” Doc. No. 23-3 at 4.
ODOC policy required Plaintiff to pass two plaque tests, two weeks apart, to begin
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receiving Priority III restorative treatment. Doc. No. 62-14 at 7. However,
Plaintiff was not scheduled for such a test until he complained of dental problems
again in mid-January 2021. Doc. No. 63-1 at 63. C. Ritzendollar, ARNP, noted
Plaintiff’s 	previous 	examination 	on 	December 	9, 	2020, 	that 	a 	follow 	up
examination had not been conducted, and sent a note to dental alerting them of
this circumstance. Id. This delay was contrary to, not in accordance with, ODOC
policy.
Plaintiff did not pass the subsequent plaque test conducted on January 28,
2021. Doc. No. 63-1 at 6. Plaintiff had been scheduled for a test in early February
but did not attend the appointment. Plaintiff now contends that he did not fail to
attend but rather, the dental office was closed that day. Doc. No. 115 at 14.6 In
either scenario, as previously established, these delays were not in accordance
with the ODOC policy he now challenges. ODOC policy required plaque tests to
be given two weeks apart. See, supra. WKCC did not perform another plaque test
until March 17, 2021. Doc. No. 63-1 at 50. Again, these events and/or delays in
WKCC officials performing Plaintiff’s plaque tests were not the result of ODOC
6 According to the record, Plaintiff had a dental appointment scheduled for February 8,
2021, but officials rescheduled it to February 10, 2021, due to the office being closed.
Doc. No. 63-1 at 53. The record indicates Plaintiff did not attend the February 10th
appointment. Id. at 52. Plaintiff disputes the record in this regard. Doc. No. 115 at 14.
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policy but, in fact, contrary to the same.
Plaintiff himself states that the “policy is written as if Plaintiff would get
restoration treatment soon . . . by passing the two (2) week follow-up plaque
indices (test).” Doc. No. 115 at 11. He complains that the two week follow-up,
mandated by the ODOC policies, was not followed. Id. at 16. Plaintiff also asserts
that Defendant Tammy Lauer, in retaliation for a grievance he submitted the
month prior, manipulated his records to indicate that he did not show up for an
appointment. Doc. No. 115 at 15. Thus, it is clear Plaintiff’s own allegations do
not support his contention that the ODOC policies result in delays in treatment.
Instead, according to Plaintiff, the delays in his care were the result of individuals
not following said policies.
Plaintiff also asserts that pursuant to ODOC policy, he could not receive
certain treatment due to the length of his sentence. Doc. No. 115 at 8 (examples
of Plaintiff’s misunderstanding of the relevant policy provisions). However,
Plaintiff clearly misunderstands ODOC’s dental care policy in this regard. OP-
140124 provides that an inmate will not receive certain dental care, generally
routine restorative care, unless he has served at least six months continuous
incarceration for his current conviction. Doc. No. 62-14 at 6-7. The policy
specifically provides that treatment for periodontal disease, from which Plaintiff
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suffered, may proceed prior to six months of incarceration. Id. at 7. Additionally,
ODOC’s policy provides that molar and/or premolar endodontics were not
available for inmates who would be discharged in less than one year after
diagnosis. Id. at 9. Finally, ODOC does not provide dentures to inmates unless
they have at least one year of incarceration remaining. Id. at 10. In light of
Plaintiff’s sentences, these policy provisions did not affect Plaintiff’s receipt of
dental care as, during all relevant time periods, he had served more than six
months and had more than one year remaining on his sentences. Doc. No. 62-1 at
2.7
X. Defendant Foster
In her Motion, Defendant Foster misstates Plaintiff’s claim, stating that
“Plaintiff claims that Defendant Foster placed him on a treatment plan for plaque
7 In his Response, Plaintiff raises, for the first time, allegations that Defendant Hastings
Siegfried was responsible for policies that resulted in Eighth Amendment violations
related to the presence of pests and rodents, Doc. No. 115 at 18-22, and the providing of
inadequately nutritious meals to inmates. Id. at 23-25. While Plaintiff asserted Eighth
Amendment claims against other Defendants related to these conditions of confinement,
he did not assert these claims against Defendant Hastings Siegfried and/or state that
these conditions were the result of ODOC policies this Defendant enacted. Therefore,
such claims are not properly before this Court. See, cf., McDonald v. Citibank N.A., No.
21-cv-00427-PAB-NRN, 2021 WL 5736437, at *9 (D. Co. Dec. 2, 2021) (“A plaintiff
[] may not amend his complaint in a response to a defendant’s motion to dismiss.” (citing
Abdulina v. Eberl’s Temp. Servs., Inc., 79 F. Supp. 3d 1201, 1206 (D. Colo. 2015);
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)).
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instead of a restorative treatment plan and that she failed to ‘ma[k]e sure’ Plaintiff
followed up with his treatment plan.” Doc. No. 71 at 20 (citing Doc. No. 23-3 at
5). Although Plaintiff’s Amended Complaint does not set out his claims in the
most cogent of manners, he is clear that the ODOC policy required plaque tests in
order to receive restorative treatment. Plaintiff asserts Defendant Foster violated
his Eighth Amendment rights by placing him on a treatment plan that required a
plaque test in order to receive restorative treatment, and then failed to follow up
to ensure a plaque test was performed. Doc. No. 23-3 at 5. Plaintiff contends this
resulted in his being denied emergency dental treatment and undergoing tooth
extractions that may have otherwise been avoided. Id.
It is well established that a delay in providing medical care does not violate
the Eighth Amendment, unless there has been deliberate indifference resulting in
substantial harm. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). In situations
where treatment was delayed rather than denied altogether, the Tenth Circuit
requires a showing that the inmate suffered “substantial harm” as a result of the
delay. Sealock, 218 F.3d at 1210. “The substantial harm requirement ‘may be
satisfied by lifelong handicap, permanent loss, or considerable pain.’” Mata v.
Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Garrett v. Stratman, 254 F.3d
946, 950 (10th Cir. 2001)).
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It is not clear from the record that Defendant Foster placed Plaintiff on a
treatment plan. Regardless, it is clear from the record that it was not a delay in
treatment that resulted in Plaintiff’s tooth extractions.
Contrary to Plaintiff’s repeated assertions in his Response, when Dr.
Watterson performed Plaintiff’s initial examination at LARC, he did not conclude
that all of Plaintiff’s remaining teeth were candidates for restorative care. Doc.
No. 63-1 at 90. Dr. Watterson noted missing teeth, that restoration existed on eight
teeth, and “[r]estoration indicated” regarding eleven teeth. 	Id. 	Finally, and
significantly, Dr. Watterson categorized Plaintiff as Priority II. Id. Thus, it is clear
from the record that as early as November 2021, a dentist concluded that at least
some of Plaintiff’s teeth did not qualify for restorative treatment. Id.; Doc. No.
62-14 at 6.
Additionally, while Dr. Aitson rated Plaintiff as Priority III overall during
his first dental examination, he also found that two of his teeth, #5 and #12, had
deep tooth decay that extended into the pulp of each tooth. Doc. No. 63-1 at 74-
75. As previously noted, ODOC’s dental policy anticipated that an inmate could
receive Priority II and III treatment simultaneously. Doc. No. 63-14 at 7. Further,
as early as December 14, 2020, a staff member responded to Plaintiff’s Inmate
Request explaining, inter alia, “Your teeth that need to be removed have been put
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off too long. You will have another appointment & we can discuss this further if
need be.” Doc. No. 1-1 at 40. Thus, clearly the dental staff anticipated in
December 2020 that some of Plaintiff’s teeth needed to be extracted.
During Dr. Porttoff’s first examination of Plaintiff in May 2021, he
specifically referenced that Plaintiff’s current treatment plan described #5 and #12
as non-restorable due to the depth of decay and that treatment planned for
extractions. Doc. No. 63-1 at 43. Dr. Porttoff extracted Plaintiff’s tooth #12 on
June 14, 2021, noting that Plaintiff presented for previously diagnosed treatment
of extraction of #12. Id. at 41.
As previously noted, an Eighth Amendment claim based on delay of
medical care requires the delay to have resulted in a lifelong handicap, permanent
loss, or considerable pain. Mata, 427 F.3d at 751. Plaintiff has not met this
requirement. Based on the record, Plaintiff’s tooth extraction while at WKCC was
not the result of treatment delay but instead the extraction was anticipated when
Plaintiff arrived at the facility. To the extent Plaintiff experienced a delay in
receiving the first plaque test, and presuming without deciding that Defendant
Foster was somehow involved in the same, said delay was at most negligent and
in any event, Plaintiff has not set forth any allegations establishing that said delay
caused substantial harm. Whitley v. Albers, 475 U.S. 312, 319 (1986) (explaining
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that Eighth Amendment liability requires “more than ordinary lack of due care for
the prisoner’s interests or safety”); Handy v. Price, 996 F.2d 1064, 1067 (10th
Cir. 1993) (holding a claim that prison doctor was negligent in treatment of
plaintiff did not constitute a constitutional violation).
RECOMMENDATION
Based on the foregoing findings, the undersigned recommends Defendants’
Motion to Dismiss, converted to a Motion for Summary Judgment (Doc. No. 71),
be granted based on Plaintiff’s failure to exhaust administrative remedies.
Alternatively, Plaintiff’s claims against Defendants Hastings Siegfried and Foster
should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for his failure to
state a claim upon which relief could be granted.
Plaintiff 	is 	advised 	of 	the 	right 	to 	file 	an 	objection 	to 	this 	Sixth
Supplemental Report and Recommendation with the Clerk of this Court by
October 13th , 2022, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72.
The 	failure 	to 	timely 	object 	to 	this 	Sixth 	Supplemental 	Report 	and
Recommendation would waive appellate review of the recommended ruling.
Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75
F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to
the magistrate judge’s recommendation are deemed waived.”).
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This Sixth Supplemental Report and Recommendation disposes of all
issues referred to the undersigned Magistrate Judge in the captioned matter, and
any pending motion not specifically addressed herein is denied.
Dated this 	23 rd day of September, 2022.
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