David v. Crow et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JEROME ADRIAN DAVID, )
)
Plaintiff, )
)
v. ) Case No. CIV-21-534-SLP
)
SCOTT CROW, et al., )
)
Defendants. )
O R D E R
Before the Court is the Fifth Supplemental Report and Recommendation [Doc. No.
122] (Fifth R.&R.) and Sixth Supplemental Recommendation [Doc. No. 123] (Sixth
R.&R.), issued by United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Plaintiff, a state prisoner appearing pro se, seeks civil rights relief,
alleging violations of his federal constitutional rights under 42 U.S.C. § 1983. In the Fifth
R.&R., the Magistrate Judge has recommended granting the Motion to Dismiss of
Defendant Michael Aitson [Doc. No. 110], after converting it to a motion for summary
judgment. And in the Sixth R.&R., the Magistrate Judge has recommended granting the
Motion to Dismiss of Defendants T. Hastings Siegfried and Tammy Foster [Doc. No. 71],
after converting it to a motion for summary judgment.1
1 Defendant Linda Eike also joined in that Motion to Dismiss. However, the Magistrate Judge had
previously recommended that she be dismissed from the lawsuit, see Second Supplemental R.&R.
[Doc. No. 85] at 50, and, therefore, did not rule on any claims involving Defendant Eike. See
Sixth R&R at 1, n. 1. The Court has adopted the recommendation of Judge Purcell in the Second
Supplemental R.&R. as to dismissal of Plaintiff’s claims against Defendant Eike. See Order [Doc.
No. 177]. Therefore, the Court declines to address any additional grounds for dismissal of
Plaintiff’s claims against her.
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Plaintiff has filed Objections to the Fifth R.&R. and Sixth R.&R. [Doc. Nos. 125,
129]. Accordingly, the Court must make a de novo determination of those issues
specifically raised by the Objections, and may accept, modify, or reject the recommended
decision. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
I. Background
Plaintiff is an inmate in the custody of the Oklahoma Department of Corrections
(ODOC). Defendant, Michael Aitson, D.D.S. (Dr. Aitson), is a dentist who, at times
relevant to Plaintiff’s claims, provided dental services to ODOC inmates housed at the
William S. Key Correctional Center (WSKCC). Defendant T. Hastings Siegfried is the
former director of the ODOC and served as the director during all times relevant to
Plaintiff’s claims addressed herein. Defendant Tammy Foster was the correctional health
services administrator (CHSA) at WSKCC at all times relevant to Plaintiff’s claims address
herein.
At issue in the Fifth R.&R. and Sixth R.&R. is Plaintiff’s Eighth Amendment claim
against Defendants in their individual and official capacities for alleged delay and/or denial
of dental care during Plaintiff’s incarceration at WSKCC. Plaintiff arrived at WSKCC on
November 19, 2020 and remained there until approximately July 1, 2021. See Special
Report, Attachment 1 [Doc. No. 62-1] at 1.2
2 Plaintiff’s Second Amended Complaint brings a number of additional claims and names a number
of additional defendants. The Court’s analysis here is limited to the claims brought against
Defendant Aitson, Siegfried and Foster, as addressed in the Fifth R.&R. and Sixth R.&R.
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A. Plaintiff’s Allegations
1. Eighth Amendment Claim Against Dr. Aitson
Plaintiff alleges the following in support of his Eighth Amendment claim against
Dr. Aitson. Dr. Aitson determined Plaintiff’s dental needs were “Priority III” under the
classification system in the ODOC’s Dental Policy. See Second Am. Compl. [Doc. No.
23], Attachment [Doc. No. 23-3] at 4. Dr. Aitson knew Plaintiff suffered “deteriorating
teeth diseases that would cause pain & discomfort upon Plaintiff[‘s] every day [sic]
activities (eatin[g], drinking, talking, smiling, reading etc.) and knew if teeth disease was
left untreated for 6 months or better the pain, infection, etc. would escalate to a [P]riority
II . . . which is a more serious problem that would require a[n] even more painful surgical
treatment and disease would spread to more teeth.” Id.
Plaintiff further alleges that Dr. Aitson placed Plaintiff on a treatment plan for
restorative care but then refused to reschedule Plaintiff for a follow-up plaque test as
required by the ODOC’s dental policy. Id. Plaintiff claims that seven months of delay in
receiving restorative treatment “led to months of ongoing pain, discomfort, sleep
deprivation, biting holes in mouth because it’s difficult to chew food, [and] swelling in face
from infections.” Id. As a result of this delay, Plaintiff’s “tooth eventually became
abscess[ed] to where antibiotics wasn’t treating the infection and anti-inflammatory pain
medicine was not easing the pain” and the “tooth could not be saved and required
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emergency extraction by Dr. Pottorff.” Id.3 As relief, Plaintiff seeks monetary damages in
the amount of $200,000.00. Id. at 10.
2. Eighth Amendment Claim Against T. Hastings Siegfried
As to Defendant Siegfried, Plaintiff alleges that he “provided only one dentist and
one dental assistant at the WSKCC prison facility with a population of 700 plus inmates.”
Doc. No. 23-3 at 6. Plaintiff alleges that Defendant Siegfried “has not established
constitutional written standards equally in dental care as medical services” and that he has
breached a duty imposed by state law. Id. at 6-7.4 As relief, Plaintiff seeks monetary
damages in the amount of $200,000.00. Id. at 12.
3. Eighth Amendment Claim Against Tammy Foster
Plaintiff alleges that Defendant Foster “personally participated in acts that caused
Plaintiff’s ongoing pain & suffering” because she “observed” Plaintiff’s dental x-rays and
records. See Doc. No. 23-3 at 5. According to Plaintiff, Defendant Foster should have
made sure Plaintiff received “emergency restorative treatment” but instead put Plaintiff
3 As discussed infra, Adam Pottorff, D.D.S. extracted tooth # 12 on June 14, 2021, while Plaintiff
was incarcerated at WSKCC. It is this extraction referenced in the Second Amended Complaint.
In his Objection to the Fifth R.&R., Plaintiff also references the extraction of tooth # 4 by Paul
Haines, D.D.S., on September 14, 2021, after Plaintiff had transferred from WSKCC and was
housed at the Howard McLeod Correctional Center (HMCC). Plaintiff’s Second Amended
Complaint was filed on August 9, 2021, prior to the extraction of tooth #4. Defendant Aitson was
not involved in Plaintiff’s dental care after Plaintiff transferred to HMCC. Accordingly, the
Court’s analysis is confined to Plaintiff’s claim regarding the extraction of tooth #12, the only
tooth that was extracted during his period of incarceration at WSKCC and addressed in the
allegations of the Second Amended Complaint.
4 In wholly conclusory fashion, Plaintiff also alleges that Defendant Siegfried “prevented Plaintiff
a due process.” Id. at 7. The Court finds Plaintiff has failed to allege any due process claim based
on such conclusory allegations.
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“back on a treatment plan for plaque test.” Id. Additionally, Plaintiff alleges Defendant
Foster never made sure that any follow-up treatment for a plaque test was being conducted
as required by the ODOC’s dental policies. As a result, Plaintiff alleges that he had to have
a tooth extracted.5 Plaintiff also alleges that Defendant Foster was “aware that there was
only one dentist for a prison population at the WSKCC of 700 plus inmates and knew this
would cause delays and in some cases denial of emergency dental treatment.” Id. As relief,
Plaintiff seeks monetary damages in the amount of $200,000.00. Id. at 10.
B. Defendants’ Motions to Dismiss
Dr. Aitson has moved for dismissal of Plaintiff’s claim on the following grounds:
(1) Eleventh Amendment immunity; (2) failure to exhaust administrative remedies; (3)
failure to state a § 1983 claim for a violation of Plaintiff’s Eighth Amendment rights; (4)
failure to allege Dr. Aitson’s personal participation in the alleged violation of Plaintiff’s
constitutional rights; (5) failure to state a § 1983 claim for a violation of Plaintiff’s due
process rights; and (6) qualified immunity. See Dr. Aitson’s Mot. [Doc. No. 110].
Defendants Siegfried and Foster have moved for dismissal on the same grounds, with the
exception of any argument premised on due process rights. See Defs.’ Mot. [Doc. No. 71].
As set forth, the Magistrate Judge considered matters outside the pleadings,
converted Dr. Aitson’s Motion to a motion for summary judgment, and found summary
judgment should be entered in Dr. Aitson’s favor as to Plaintiff’s individual capacity
5 Again, the tooth that is the subject of this claim is tooth #12.
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Eighth Amendment claim. The Magistrate Judge did not address any additional grounds
for dismissal raised by Dr. Aitson.
As to the Motion to Dismiss of Defendants Siegfried and Foster, the Magistrate
Judge similarly converted their Motion to a motion for summary judgment and found
summary judgment should be entered in Defendants’ favor based on Plaintiff’s failure to
exhaust administrative remedies or, alternatively, on the merits of Plaintiff’s Eighth
Amendment claim brought against them.6
C. Plaintiff’s Objections7
Plaintiff argues that, construing the evidence in the light most favorable to him,
genuine issues of material fact preclude summary judgment in Dr. Aitson’s favor. Plaintiff
takes particular issue with the Magistrate Judge’s findings regarding restorative treatment
for his teeth. Plaintiff focuses on the constant pain he suffered, the ineffectiveness of the
medications prescribed to him, and the ultimate extraction of two of his teeth – first, tooth
#12 and thereafter, tooth #4.8 Plaintiff disagrees with the Magistrate Judge’s finding that
6 The Magistrate Judge did not distinguish between Plaintiff’s individual capacity and official
capacity claims in addressing either of the Motions to Dismiss. As discussed infra, Plaintiff’s
official capacity claims against Defendants are subject to dismissal on grounds of Eleventh
Amendment immunity, as raised in their respective Motions.
7 The Court notes that Plaintiff’s Objections are voluminous and, to some extent, his claims
continue to evolve. To this end, theories Plaintiff has raised for the first time in his Objections are
waived and the Court need not address those. See United State v. Garfinkle, 261 F.3d 1030, 1031
(10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate
judge’s report are deemed waived.” (citing Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996)).
8 As previously addressed, the Second Amended Complaint is limited to allegations regarding the
extraction of tooth #12. Moreover, the record contains no evidence that Plaintiff made any
complaint regarding tooth #4 while he was at WSKCC. As discussed more fully herein, the record
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Dr. Aitson did not delay or deny treatment for Plaintiff’s teeth cavities or “caries.” Plaintiff
also disagrees with the Magistrate Judge’s conclusion that Plaintiff’s claim against Dr.
Aitson does not give rise to Eighth Amendment liability because the record shows a mere
disagreement over the course of treatment provided (i.e., prescribed antibiotics and pain
medication) and not deliberate indifference to Plaintiff’s serious dental needs.
Plaintiff further argues that he exhausted administrative remedies as to his Eighth
Amendment claim and contests the Magistrate Judge’s findings to the contrary as to his
claims against Defendants Siegfried and Foster. Plaintiff also disputes the Magistrate
Judge’s finding that, assuming Defendant Foster was somehow involved in his dental
treatment, any delay attributed to her was at most the result of negligence.
As discussed more fully below, the Court finds that Defendants are entitled to
Eleventh Amendment immunity as to any official capacity § 1983 claims brought against
them. The Court further finds that even though the Magistrate Judge did not address the
issue of exhaustion as to Plaintiff’s Eighth Amendment dental claim against Dr. Aitson,
the scope of that claim is necessarily limited to those issues that were properly exhausted
through the ODOC’s administrative grievance procedures as required by the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). See Williams v. Wilkinson, 659 F.
App’x 512, 514 (10th Cir. 2016) (“[T]he administrative grievance must have alleged the
same facts as the court complaint” as “[a] court claim that was not alleged at the
administrative level could not have been exhausted there.” (citing Woodford v. Ngo, 548
indicates the reason tooth #4 was extracted is because the tooth broke. That incident occurred after
Plaintiff had left WSKCC.
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U.S. 81, 94 (2006)); see also Estrada v. Smart, -- F. 4th --, No. 23-1189, 2024 WL 3420365
at *4 (10th Cir. July 16, 2024) (for publication) (“Until the issue of exhaustion is resolved,
the court cannot know whether it is to decide the case or prison authorities are to.” (internal
quotation marks and citation omitted)). Thus, the Court deems it necessary to address the
exhaustion defense raised by Dr. Aitson before proceeding to address the Eighth
Amendment claim and Plaintiff’s objections to the Magistrate Judge’s findings with respect
thereto.
The Court finds the exhausted Eighth Amendment claim against Dr. Aitson fails as
a matter of law and adopts the recommendation of the Magistrate Judge to grant summary
judgment in favor of Dr. Aitson. Additionally, as discussed in detail below, the Court
concludes, as did the Magistrate Judge, that Plaintiff did not satisfy § 1997e(a)’s exhaustion
requirement as to Defendants Siegfried and Foster. Finally, as to Plaintiff’s claim against
Defendant Foster, the Court finds, in the alternative, that she is entitled to judgment as a
matter of law on Plaintiff’s Eighth Amendment claim against her.
II. Governing Standards
The Court recites the standards for dismissal on grounds of Eleventh Amendment
immunity and Rule 56 of the Federal Rules of Civil Procedure. The former standard
governs the dismissal of Plaintiff’s official capacity claims against Defendants. And the
Rule 56 standard governs the exhaustion defense and the individual capacity claims against
Defendants.
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A. Dismissal on Grounds of Eleventh Amendment Immunity
The Magistrate Judge did not address Plaintiff’s official capacity claims in either
the Fifth R.&R. or Sixth R.&R. But Defendants raised the issue of Eleventh Amendment
immunity from suit in their official capacities. See Dr. Aitson’s Mot. to Dismiss [Doc. No.
110] at 4-5; Defendants Siegfried and Foster’s Mot. to Dismiss [Doc. No. 71] at 11-12.
Eleventh Amendment immunity “concerns the subject matter jurisdiction of the
district court.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Although
Defendants cite the standard of decision under Fed. R. Civ. P. 12(b)(6), their assertion of
Eleventh Amendment immunity raises a jurisdictional issue of whether the official capacity
claims brought against them are barred by sovereign immunity. The Motion, therefore, is
governed by Fed. R. Civ. P. 12(b)(1). See Harris v. Owens, 264 F.3d 1282, 1288 (10th
Cir. 2001) (“Once effectively raised, the Eleventh Amendment becomes a limitation on our
subject-matter jurisdiction. . . .”); see also Muscogee (Creek) Nation v. Pruitt, 669 F.3d
1159, 1168 (10th Cir. 2012) (stating that “ ‘the question whether [a] suit states a claim upon
which relief can be granted is [not] coincident in scope with [an] Eleventh Amendment
inquiry’ ”) (citation omitted); Davis v. California, 2017 WL 4758928, at *1 (D. Kan. Oct.
20, 2017) (construing Rule 12(b)(6) motion as a Rule 12(b)(1) motion because the
defendants were seeking dismissal based on sovereign immunity and comity, which are
both matters of subject-matter jurisdiction); Moreno v. Kan. City Steak Co., 2017 WL
2985748, at *3 (D. Kan. July 13, 2017) (“Despite the Rule 12(b)(6) label defendant places
on its Motion to Dismiss, the court must construe it as a motion under Rule 12(b)(1) if the
question it presents is jurisdictional.”).
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“Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the
sufficiency of the complaint’s allegations as to subject matter jurisdiction; or (2) a
challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz, 299
F.3d at 1180 (citation omitted). Here, Defendants facially attack the sufficiency of the
allegations contained in the Complaint, and thus, all well-pleaded factual allegations are
accepted as true. Id.
The party seeking federal jurisdiction over his or her claim “has the burden to
establish that it is proper, and there is a presumption against its existence.” Salzer v. SSM
Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (quotations and citation
omitted); see also Kinney v. Blue Dot Servs. of Kan., 505 F. App'x 812, 814 (10th Cir.
2012) (explaining that the “court may not assume that a plaintiff can establish subject
matter jurisdiction; it is the plaintiff's burden to prove it”). “A court lacking jurisdiction
cannot render judgment but must dismiss the cause at any stage of the proceedings in which
it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495
F.2d 906, 909 (10th Cir. 1974) (citation omitted).
B. Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). In deciding whether summary judgment is proper, the court
does not weigh the evidence, but rather determines whether there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); see also Roberts v.
Jackson Hole Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018). If there is
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sufficient evidence on each side so that a rational trier of fact could resolve the issue either
way, the issue is “genuine.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998). “Material” issues of fact include those that, under the substantive law, are essential
to the proper disposition of the claim. Id. The Court construes the evidence in the light
most favorable to the nonmovant, drawing all reasonable inferences in the nonmovant’s
favor. Est. of Beauford v. Mesa Cnty., Colo., 35 F.4th 1248, 1261 (10th Cir. 2022) (citing
Anderson, 477 U.S. at 248).
III. Undisputed Material Facts9
A. Plaintiff’s Grievance Submissions
The undisputed record establishes that Plaintiff did submit one grievance at
WSKCC regarding his dental needs, Grievance No. 21-03, which was properly exhausted
as of April 12, 2021. See Def. Aitson’s Mot. at 8 (identifying Grievance No. 21-03 as
“properly exhausted”); Defs. Siegfried and Foster’s Mot. at 16-17 (acknowledging that
Grievance No. 21-03 was properly exhausted but limiting its scope to the “denial of dental
implants); see also Pl’s Resp. [Doc. No. 121] at 2 (“Both parties agree Plaintiff has satisfied
the exhaustion requirement in grievance 21-03.”). The undisputed record further
establishes no other grievances regarding Plaintiff’s dental needs were properly exhausted.
9 Included here are those material facts supported by the record and not genuinely disputed in the
manner required by Fed. R. Civ. P. 56(c).
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But the parties do not agree on the scope and/or subject matter of the issues raised
by Plaintiff in Grievance No. 21-03. Dr. Aitson characterizes Grievance No. 21-03 as “a
disagreement with the dentist’s recommended course of treatment” noting that Plaintiff
claimed it was “‘not fair’ to deny him replacement of teeth that are decayed.’” Def.’s Mot.
at 8 (citing Doc. No. 62-25 at 487)). Dr. Aitson contends Grievance No. 21-03 only
exhausted a medical claim “as to the denial of dental implants.” Id. at 9. He further
contends that Plaintiff “failed to properly exhaust any other issues as to his dental care.”
Id. Defendants Siegfried and Foster construe Grievance No. 21-03 in the same manner as
Dr. Aitson. See Defs.’ Mot. [Doc. No. 71] at 16. Plaintiff, however, views Grievance No.
21-03 as exhausting his claims regarding Dr. Aitson’s delay and denial of dental care. See
Pl’s. Obj. [Doc. No. 125] at 7 (referencing grievance filed January 21, 2021 (Grievance
No. 21-03) as the grievance exhausting Dr. Aitson’s “delay and denial in treating
Plaintiff[‘s] teeth cavities (caries).”).
1. The ODOC’s Grievance Process /
Plaintiff’s Grievance No. 21-03
“The ODOC grievance process has a requirement of informal consultation with
staff, then three written steps: a Request to Staff form, a formal grievance, and an appeal
to the administrative review authority.” Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir.
2010).10 In order for a grievance to be properly exhausted, an inmate must complete all
phases of the ODOC’s grievance process. Id. at 1118.
10 The ODOC’s Inmate/Offender Grievance Process, OP-090124, effective during the period of
Plaintiff’s claims, is included in the record. See Doc. No. 64-1 at 2-23 (Grievance Process,
effective 11/30/2020).
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a. First Written Step: January 4, 2021 Request to Staff
On January 4, 2021, Plaintiff initiated the Grievance Process by submitting a
Request to Staff. Doc. No. 62-25:2. Plaintiff stated that he had “less than seven teeth at
the top of [his] mouth and that makes it hard for [him] to chew food because [he] ha[d]
already lost teeth and to get more teeth pulled would only make it harder for [him] to chew
and smile.” Id. at 3. He further stated that sometimes he “bite[s] holes in [his] mouth
trying to chew with so many missing teeth.” Id. Plaintiff requested that he “receive
implants.” Id. at 2.11
The Grievance Process provides that “[t]he staff member assigned will respond in
writing within ten (10) days of receipt to all ‘Request to Staff’ forms being used to attempt
informal resolution.” OP-090124, ¶ V(B)(1)(b)((5)). It further provides that the staff
member “will document any action taken and will cite or quote applicable agency
procedures.” Id.
On January 12, 2021, Tammie Lauer, the dental assistant at WSKCC, responded to
Plaintiff’s Request to Staff. She advised Plaintiff as follows:
There are a couple of requirements for a denture: One is that you must have
a body mass index of 18 or below. Yours is 25. Also, it must be a medical
necessity. Policy also says if you came into the system without teeth, they
will not be replaced. DOC does not do implants at all.
62-25:2.
11 Plaintiff vaguely referenced treatment, but it appears he was focused on implants and not
restorative treatment. See id. at 3 (I don’t think it is fair to me that you compare my situation to
“everyone” as a reason or excuse as to why one of the requirements as to why I can’t receive
implants or treatment, then use the policy as an [sic] reason to deny me treatment (Implants).”).
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b. Second Written Step: January 21, 2021 Grievance No. 21-03
Under the Grievance Process, if a complaint is not resolved informally through a
Request to Staff, the inmate may submit a formal grievance. OP-090124, ¶ VI(A). “The
complaint and relief requested in the grievance must be consistent with the complaint and
relief requested on the underlying ‘Request to Staff’ form. Id., ¶ VI(A)(1)((c)).
On January 21, 2021, Plaintiff submitted Grievance No. 21-03. Doc. No. 62-25 at
4-5. The grievance form requires the inmate to first identify the “nature of [his] complaint.”
Id. at 4. In this section of the grievance, Plaintiff stated that following a sick call request
on December 3, 2020, the dentist did an examination of his teeth and offered to “pull the
teeth out.” Id. Plaintiff further stated that he did not think this was his only option and
referenced the ODOC Dental Policy, which provides for “temporary or sedative fillings”
for “[a]dvanced carious lesions or teeth that have lost restorations.” Id. (citing Dental
Policy, ¶ (D)(2)(a))). According to Plaintiff, he asked the dentist if he could get his teeth
restored with implants. Id. at 5 (“I asked the dentist can I get teeth restored with implants
so I can eat food without biting holes in mouth and smile again.”) (emphasis added). The
dentist told Plaintiff he did not qualify for restorative care.
Plaintiff further stated that the dentist then set an appointment for Plaintiff “to come
back and take a test to see if [he] qualif[ied] for treatment of teeth that are causing [him]
serious pain, discomfort, infections, swelling, decay also holes (broken teeth) . . . .” Id.
Plaintiff referenced a provision of the ODOC Dental Policy, OP140124, ¶ I(D)(1) which
states that a “Priority I” classification is for “[g]ross pathosis of the oral cavity that may
provide an immediate threat to the inmate’s health.” Id.; see also Dental Policy [Doc. No.
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62-14 at 5.12 He then referenced a December 3, 2020 Inmate Request for Health Services.
Id. 13
Plaintiff stated as of the date of the submission of Grievance No. 21-03 (January 21,
2021), two months had passed since the submission of his Request for Health Services and
he still had not taken “a test.” Id.14 He stated the dentist had prescribed a two-week supply
of antibiotics and pain medicine but his teeth were “only getting worst [sic]” and “the pills
[were] not preventing the decay, cavities, discomfort or swelling . . . .” Id.
Plaintiff then referenced a January 4, 2021 Request to Staff. It is this Request to
Staff that Plaintiff identified in the section of the grievance form which requires the inmate
to identify the “[i]nformal action taken (including dates) to resolve the complaint.” As
12 Plaintiff’s dental classifications during the time period relevant to his claims is discussed infra.
Plaintiff was never classified as Priority I.
13 Although in the Grievance, Plaintiff identified the date of the Request for Health Services as
December 3, 2020, the record does not include any request made on that date. Instead, it appears
the request was made on December 7, 2020. See Doc. No. 63-2 at 2. The Request for Health
Services requested dental services on the following grounds:
I have a big hole in tooth, where the root canal came out and the nerve is exposed
and is giving me a whole lot of problems, even infected because there’s no way to
clean hole. I need the nerve to be killed in tooth. It’s bothering me a lot [and] even
irritates the nerve when I eat or drink cold or hot drinks or food.
Id. In response to this request, on December 8, 2020, Plaintiff was advised a dental appointment
had been scheduled. Id. As discussed infra, the record reflects Dr. Aitson saw Plaintiff the next
day on December 9, 2020. See Doc. No. 63-1 at 74-76.
14 Plaintiff presumably references a plaque test pursuant to Dental Policy OP-140124,
¶ I(D)(3)(f)((5)). Id.
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previously addressed, the “action requested” by Plaintiff in the January 4, 2021 Request to
Staff was “to receive implants.” Doc. No. 62-25 at 2.15
The final section of the grievance form requires the inmate to set forth “the action
[he] believe[s] the reviewing authority may lawfully take.” 62-25 at 4. Plaintiff stated: “I
would like to receive proper treatment for the restoration of m[y] teeth.” Id.
The Grievance Process provides that the reviewing authority will respond to the
grievance and forward the answered grievance form to the inmate within 20 days of receipt
of the grievance. OP-090124 ¶ VI(C)(1). On January 28, 2021, the Reviewing Authority,
Tammy Foster, responded to Plaintiff’s Grievance No. 21-03 as follows:
Pertinent information from your electronic health record (EHR) was
reviewed. According to your chart, you were screened as a priority III per
OP-140124D #3. You have had a treatment plan done on 12/29/20[16] per
OP-140124 F #3 and your first plaque test done per 140124 E #5 on 1/28/21
and was a 43.1% which has to be 35% or lower on at least two occasions
separated by a two week minimum time frame, for inmates who will retain
any natural teeth. Your dental plan is in place and being followed per policy.
See Doc. No. 62-25 at 6.
c. Third (and Final) Written Step: February 8, 2021 Appeal
of Grievance No. 21-03
Under the Grievance Process, Plaintiff could appeal the denial of his grievance to
the Administrative Review Authority (ARA). See OP-090124, ¶ VIII(A). Grounds for an
15 Although Plaintiff included two different requests to staff in his grievance, it was not rejected
on that ground. See OP-090124, ¶ VI(A)(1)((F)) (“Only one issue or incident is allowed per
grievance.”).
16 The treatment plan date appears to be a typographical error. The record reflects the referenced
treatment plan occurred on December 9, 2020. See Doc. No. 63-1 at 74.
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appeal include newly discovered evidence or probable error committed by the reviewing
authority such as would be grounds for reversal. Id.
On February 8, 2021, Plaintiff raised both of these grounds in support of his appeal
of the denial of Grievance No. 21-03. Doc. No. 62-25 at 7-9. He identified as “newly
discovered evidence” information included in the denial of his grievance and specifically,
Defendant Foster’s reference to provisions of the ODOC Dental Policy. Id. He stated “this
is when I discovered the diagnosis of my teeth and the seriousness of the conditions.” Id.
He referenced “periodontal disease” and stated “delay is not helpful to treatment” of this
disease. Id. at 8. But Plaintiff did not identify any treatment or reference a failure to
provide treatment by Dr. Aitson.
As to probable error, he cited Okla. Stat. tit. 59, § 328.19. That statutory provision
identifies acts “regarded as practicing dentistry within the meaning of the State Dental
Act.” Id., § 328.19(A). He made specific reference to subdivision 14 which includes as
acts of dentistry the furnishing of prosthetic dentures. Id., § 328.19(A)(14).17 He then
stated that Defendant Foster “made an error in her decision that could be grounds for
reversal” when she told him that the “DOC does not do implants at all.” Id.
17 Subdivision (A)(14) states in full that “acts regarded as practicing dentistry within the meaning
of the State Dental Act” include: “[f]urnishing, supplying, constructing, reproducing, or repairing,
or offering to furnish, supply, construct, reproduce, or repair, prosthetic dentures, sometimes
known as plates, bridges, or other substitutes for natural teeth for the user or prospective user
thereof[.]” Okla. Stat. titl. 59, § 328.19(A)(14).
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On April 12, 2021, the ARA, Cheri Atkinson, Medical Services Manager, denied
relief to Plaintiff on his appeal of Grievance No. 21-03. Doc. No. 62-25:10. Ms.
Atkinson’s decision reflects the following:
Request:
“The CHSA Tammy Foster made an error in her decision that could
be grounds for reversal see OK ST T 59 § 328.19 . . .”
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-140124, in part, any highly specialized dental
procedure, including implants and treatment associated with implants
are not available through the Oklahoma Department of Corrections.
Id. Plaintiff was advised that the ruling was final and concluded the exhaustion of
administrative remedies. Id. As stated, Grievance No. 21-03 is the only grievance
regarding Plaintiff’s dental care that was fully exhausted.18
B. Plaintiff’s Dental Treatment at WSKCC
1. ODOC Dental Services Policy
Pursuant to the ODOC’s Dental Services Policy, OP-140124 (Dental Policy), dental
services within the ODOC include “specific guidelines to ensure that inmates receive
routine and emergency dental health care in a cost-effective manner.” See Doc. No. 62-14
18 Although not addressed by the parties, the record reflects that Plaintiff was placed on grievance
restriction as of April 20, 2021. See Doc. No. 62-26 at 7. Such placement, however, did not
prevent Plaintiff from submitting grievances. It merely imposed additional requirements on
Plaintiff in making any grievance submissions. See Doc. No. 64-1 at 18-20, OP-090124, ¶ X(B).
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at 2. The Dental Policy incorporates a “dental classification system” to “ensure that priority
is given to inmates whose oral pathosis is detrimental to their general physical health.” Id.
Dental services are provided “strictly on a priority basis” and “in accordance with the
inmate’s needs as established by the facility dentist.” Id. Dental emergencies “take
precedence over any priority of need status.” Id.
The facility dentist is responsible for “provid[ing] dental care services consistent
with community standards utilizing the priority system[.]” Id. at 3, ¶ I(A)(4)(a). The
objectives of the ODOC’s dental program include: “[r]eliev[ing] pain and alleviat[ing]
infection;” “[e]ncouraging inmates to preserve and maintain their own natural detention
through education;” and “[r]estor[ing] and help[ing] the inmate maintain [his] oral cavity
in a healthy condition.” Id. at 3-4, ¶ I(B).
As part of an inmate’s reception into the ODOC, “[a]n initial priority classification
code will be assigned to each inmate . . . at the assessment and reception center.” Id. at 5,
¶ I(D). “Access to dental health care will be prioritized in accordance with the inmate’s
current classification.” Id. An inmate is to be classified “by the highest priority that their
condition by quadrant indicates and treatment by quadrant will be provided whenever
possible.” Id.
As relevant to Plaintiff’s claims (and as discussed more fully below), Priority II
indicates “[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
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become a Priority I problem.” Id. at 6, ¶ I(D)(2).19 Priority II may include: “[t]eeth for
which routine restoration is not a terminal treatment, and therefore endodontics or
extraction is required[.]” Id. Priority II may also include “[r]oot fragments with evidence
of pathosis.” Id.
Priority III may include: “[r]outine restorative dentistry” and “[r]oot fragments.” Id.
at 6-7, ¶ I(D)(3). Before receiving Priority III treatment, an inmate must have “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.” Id. at 7,
¶ I(D)(3)(f)((5)). However, “[t]reatment for periodontal disease may proceed before
plaque indices are performed . . . .” Id., ¶ I(D)(3)(f)((6)).
2. Plaintiff’s Dental Classifications
On November 13, 2020, Plaintiff saw a dentist, Dr. Dustin Watterson, at the
Lexington Assessment and Reception Center (LARC) and received his initial priority
classification code. Dr. Watterson classified Plaintiff as Priority II. See Doc. No. 63-1 at
90. He noted that Plaintiff had ten missing teeth. Id. He further noted that Plaintiff had
“existing restoration” on eight teeth. Id. And Dr. Watterson noted “restoration indicated”
on eleven teeth, including tooth #12. Id.
Plaintiff transferred from LARC to WSKCC on or about November 18, 2020. See
Doc. No. 62-1 at 2 (Plaintiff’s ODOC Consolidated Record Card). Approximately one
month later, on December 9, 2020, Plaintiff saw Dr. Aitson at WSKCC. The record does
19 Priority I includes facial or intraoral swelling “arising from acute infection of the teeth.” Doc.
No. 62-14:5-6, ¶ 1(D)(1)(e).
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not reflect whether Dr. Aitson reviewed Plaintiff’s dental chart and his initial priority
classification code assigned by Dr. Watterson.20 Unlike Dr. Watterson, who classified
Plaintiff as Priority II, Dr. Aitson classified Plaintiff as Priority III. See Doc. No. 63-1 at
74.21
The record further reflects that, subsequent to these initial classifications, two other
dentists classified Plaintiff alternatively as Priority II or Priority III. During a brief period
in which Dr. Aitson was absent from WSKCC, Dr. Pottorff classified Plaintiff as Priority
II during a “limited” dental exam on May 24, 2021, and a subsequent extraction of tooth
#12 on June 14, 2021. Id. at 41,43.
Plaintiff transferred from WSKCC to Howard McLeod Correctional Center
(HMCC) on July 1, 2021. See Doc. No. 62-1 at 2. Shortly after his arrival at HMCC
Plaintiff was again classified as Priority III by Dr. Paul Haines, Chief Dental Officer, on
two separate occasions; first as part of a “DENTAL TREATMENT PLAN” on July 27,
2021, and again on September 14, 2021 when tooth #4 was extracted. See Doc. No. 63-1
at 10, 21-22.
20 Dr. Aitson’s dental care assistant at WSKCC, Tammie Lauer, however, had previously
conducted a dental chart review on November 19, 2020, and noted the Priority II classification.
See Doc. No. 63-1 at 87.
21 Dr. Aitson noted that both tooth #12 had a filling (amalgam). See Doc. No. 63-1 at 74-75. And
he further noted that tooth #12 had “decay into pul[p].” Id. at 75.
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3. Dr. Aitson’s Treatment of Plaintiff at WSKCC
Dr. Aitson saw Plaintiff four times during the sixth-month period December 2020
through June 2021.22 The Court addresses each of those four dates below.
a. December 9, 2020
Dr. Aitson first saw Plaintiff on December 9, 2020 in response to Plaintiff’s Request
for Health Services submitted two days prior, on December 7, 2020. See Doc. No. 63-2 at
2. At that time, Plaintiff had been at WSKCC for approximately three weeks. As
previously set forth, Plaintiff complained that he had “[a] big hole in tooth, where the root
canal came out and the nerve is exposed and is give me a whole lot of problems, even
infected because there’s no way to clean hole.” Id. Plaintiff requested for the “nerve to be
killed in tooth” and stated that “[i]t’s bothering me a lot” and it “irritates the nerve when I
eat or drink cold or hot drinks or food.” Id.
Dr. Aitson’s treatment notes do not reflect treatment for any particular tooth or teeth.
Instead, he created a “DENTAL TREATMENT PLAN” and classified Plaintiff as “Priority
III.” Doc. No. 63-1 at 74-76. As part of Plaintiff’s treatment plan, Dr. Aitson noted that
the following teeth had “caries” : ## 2, 5, 7, 9, 10, 12 and 15. As to tooth #12, he further
noted that it had “decay into pulp.” Id. at 74-75. Dr. Aitson gave Plaintiff a thirty-day
22 Dr. Aitson was serving as the dentist at WSKCC at the time of Plaintiff’s arrival but left WSKCC
in approximately April 2023. The exact date on which Dr. Aitson left WSKCC is not clear. But
in a response dated April 26, 2021 to a Request for Health Services submitted by Plaintiff, he was
advised that “Dr. Aitson will be out for awhile.” Doc. No. 63-2 at 5. Dr. Aitson thereafter returned
to WSKCC but the exact date on which he returned is unclear. Dr. Aitson saw Plaintiff on June
24, 2021, so he had returned to WSKCC at least as of that date. Doc. No. 63-1 at 37.
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prescription of ibuprofen for pain, through January 7, 2020. See Doc. No. 63-6 at 29. He
also prescribed an antibiotic for a ten-day period, or through December 18, 2020. Id. at 30.
According to Plaintiff, when Dr. Aitson conducted the examination, he offered to
pull teeth but Plaintiff refused as he did not think this was his only option. 62-25:4
(Grievance No. 21-03 submitted January 21, 2021 – “The dentist did an examination on
my teeth and offered me the option ‘pull the teeth out.’”). Plaintiff does not identify which
tooth or teeth Dr. Aitson offered to pull. Also, according to Plaintiff, Dr. Aitson set an
appointment for Plaintiff to come back and take a plaque test to see if he qualified for
treatment of the teeth that were causing him pain and discomfort. Id. at 5 (“The dentist set
me an appointment to come back and take an [sic] test to see if I qualify for treatment of
teeth that are causing me serious pain, discomfort, infections, swelling, decay . . . .”).
The record also includes an “Inmate Request” that Plaintiff submitted on December
9, 2020. It appears this request was submitted the same day, but after Plaintiff had seen
Dr. Aitson. Plaintiff stated:
The dentist said I don’t qualify for certain treatment because the time of my
incarceration, according to policy. I need dental work done. I don’t have
money to buy dental floss off canteen so I don’t know how [you] expect me
to properly pass this test? I need my teeth treated (implants).
Doc. No. 1-1 at 40.
On December 14, 2020, a prison official responded as follows:
Mr. David – We just saw you to begin your treatment plan & at that time,
you were told that you could use floss from the office as long as you didn’t
leave the clinic with it. So you can pass the test. We can remove the teeth
that are causing pain, if you are unable to wait until you meet eligibility
requirements. We already explained that policy is set up this way because of
time constraints. There is no way that we could ever do multiple root canals
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on everyone. Your teeth that you need removed have been put off too long.
You will have another appointment & we can discuss this further if need be.
Id.
On January 22, 2021, Plaintiff presented with a “toothache with swollen face.” See
Doc. No. 63-1 at 63. He was seen by nursing staff who “co-sign[ed] note to dental for
possible [follow-up] from this nursing protocol.” Id. Plaintiff was given more antibiotics
through January 30, 2021 Id.; see also 63-6 at 20-21.23
Four days later, on January 26, 2021, Plaintiff submitted a Request for Health
Services. See Doc. No. 63-2 at 3. He complained of an infection in his teeth, that he had
been waiting for over two months for treatment and that he needed stronger antibiotics
because the antibiotics he had been given were not effective to help the swelling, prevent
an abscess, allow him to eat properly and prevent pain. Id. This request was submitted
approximately five days after Plaintiff’s submission of Grievance No. 21-03.
b. January 28, 2021
On January 28, 2021, Dr. Aitson saw Plaintiff a second time. Dr. Aitson conducted
a plaque test and scored Plaintiff at 43.1 percent. See Doc. No. 63-1 at 59. This plaque
test appears to have been provided in response to Plaintiff’s January 21, 2021 submission
of Grievance No. 21-03. See Doc. No. 62-25 at 6 (discussed supra). Plaintiff’s score
23 Dr. Aitson co-signed the treatment notes. See Doc. No. 63-1 at 63.
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rendered him ineligible to receive restorative treatment under the Dental Policy. Dr. Aitson
prescribed more antibiotics, through February 9, 2021. See Doc. No. 63-6:19.24
It further appears that Plaintiff was scheduled two weeks out for another plaque test
because on February 8, 2021, a treatment note states “dental reschedule.” See Doc. No.
63-1 at 53. And on February 10, 2021, a treatment note states: “dental no show.” Id. at
52. The dental assistant, Tammie Lauer, later stated in a response to Plaintiff’s Request
for Health Services that he had not shown up for his plaque test. See Doc. No. 63-2 at 4.
Plaintiff’s antibiotic prescription had ended one day before on February 9, 2021.
On March 11, 2021, Plaintiff submitted a Request for Health Services. He
complained that his “priority III (periodontal disease)” was not getting better. Id. He
advised that he had “holes in teeth from previous dental treatment where root canals had
fallen out” and that it was hard for him to chew food. Id. He further stated that “[t]he
swelling and infection continues” that he had “cavities [and] missing teeth which causes
[him] to bite holes in [his] mouth when trying to chew food.” Id. He asked for “more
medicine and pain medicine” and stated that he had “teeth that are decayed really bad” for
which he needed treatment. Id. As stated, Ms. Lauer, told him that he had not been able
to pass the plaque test, that he had been rescheduled for one but did not show, and that she
would schedule another one soon. Id.
24 There is no record of treatment for any particular tooth or teeth. Nor is there a record that
Plaintiff requested treatment for any particular tooth or teeth.
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c. March 17, 2021
On March 17, 2021, Dr. Aitson saw Plaintiff for the third time. See Doc. No. 63-1
at 50. He conducted a plaque test (as Plaintiff had been told on March 11, 2021 would be
scheduled), and scored Plaintiff at 31.8 percent. Id. This score brought Plaintiff within the
eligibility range for restorative treatment under the Dental Policy, subject to Plaintiff
scoring within the acceptable plaque index range a second time “separated by a two week
minimum time frame,” i.e., Plaintiff could test again sometime after March 31, 2021. See
Doc. No. 62-14 at 7, ¶ I(D)(3)(F)((5)). Dr. Aitson prescribed more antibiotics through
March 26, 2021 (ten days) and ibuprofen through May 15, 2021 (sixty days). See Doc. No.
63-6 at 15-16.
As set forth supra, the appeal of the denial of Grievance No. 21-03 was denied on
April 12, 2021. And as discussed infra, the remaining complaints submitted by Plaintiff
are not properly exhausted and cannot be grounds for Plaintiff’s Eighth Amendment claim
against Dr. Aitson. The Court, nonetheless, includes these additional complaints to provide
the full record of Plaintiff’s dental care while at WSKCC.
On April 23, 2021, Plaintiff submitted a Request for Health Services. He
complained that the antibiotics were not working and the plaque test did not constitute
“treatment” for his periodontal disease. He further complained that his dental problems
were worsening and that he was in constant pain. He requested to see the dentist. See Doc.
No. 63-2 at 5.
In response, on April 26, 2021, the dental assistant, Ms. Lauer, told Plaintiff that Dr.
Aitson would be “out for a while” and that until he returns, no routine care would be
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provided, but only treatment for dental emergencies. Id.25 Ms. Lauer further told Plaintiff
that if he wanted teeth extracted to let her know “ASAP” as the dentist “comes only one
day each week.” Id.
Plaintiff continued to complain of pain and request dental treatment during the first
several weeks of May 2021. Id. at 6-7. On May 17, 2021, Plaintiff stated in a Request for
Health Services that he “qualif[ied] for restoration of teeth” and that he would not “agree
to an extraction if the dentist is not going to replace the teeth with substitutes for natural
teeth.” Id. at 7. On May 18, 2021, in response, the dental assistant, Ms. Lauer, told Plaintiff
that he would be scheduled for dental treatment and acknowledged that he needed “several
fillings & a root canal or extraction.” She also told him he would need to pass another
plaque test. Id.
On May 20, 2021, a different dentist, Dr. Adam Pottorff, treated Plaintiff and
classified him as “Priority II.” See Doc. No. 63-1 at 44. Dr. Pottorff also prescribed
antibiotics for Plaintiff for a “previously [diagnosed] condition and [treatment] plan.” Id.
Four days later, on May 24, 2021, Dr. Pottorff again treated Plaintiff who presented
with complaints that tooth #5 and tooth #12 were causing severe pain at night. See Doc.
No. 63-1 at 43. Dr. Pottorff advised Plaintiff that his “current treatment plan” classified
tooth #5 and tooth #12 “as non-restorable due to depth of caries” and explained that those
teeth required extraction. Id. Dr. Pottorf further advised Plaintiff that “non-urgent
25 The record is silent as to the reason for Dr. Aitson’s brief absence. But Plaintiff’s Eighth
Amendment claim is not based on Dr. Aitson’s absence from WSKCC. And, in any event, he did
not file any grievance regarding Dr. Aitson’s absence.
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restorations [were] not being done at this time due to facility dentist being absent” and that
the clinic was “emergency only at this time.” Id. Dr. Pottorff offered to extract teeth #5
and #12 but Plaintiff refused. Id.
Then, on June 7, 2021, Plaintiff submitted a Request for Health Services stating:
“I’ve never had tooth pain like this!” See Doc. No. 63-2 at 8. He further stated that the
antibiotics and pain medication were doing “nothing” and that for over six months he had
been complaining that his tooth could have been saved. Id. On June 15, 2021, Dr. Pottorf
extracted tooth #12. Id. at 9 ; see also Doc. No. 63-1 at 41; Doc. No. 63-4 at 2. Next to
his signature on the consent form, Plaintiff wrote: “I wanted to save tooth but dentist chose
a less eas[y] treatment. I didn’t have a[n] option.” See Doc. No. 63-2 at 9.
d. June 24, 2021
It appears that Dr. Aitson returned to WSKCC at some point after June 7, 2021 and
before June 24, 2021. He treated Plaintiff a fourth and final time on June 24, 2021. See
Doc. No. 63-1 at 37. Dr. Aitson again classified Plaintiff as “Priority III.” Id. He addressed
Plaintiff’s postoperative symptoms from the extraction performed by Dr. Pottorf on June
15, 2021 and prescribed antibiotics and pain medication. Id.
Dr. Aitson’s June 24, 2021 treatment appears to be Plaintiff’s last dental treatment
at WSKCC. On July 1, 2021, Plaintiff was transferred from WSKCC to HMCC. See Doc.
No. 62-1 at 2.
C. Plaintiff’s Dental Treatment at HMCC
On July 27, 2021, Dr. Paul Haines, Chief Dental Officer, provided a DENTAL
TREATMENT PLAN for Plaintiff and classified him as Priority III. 63-1 at 21-22. The
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Plan identified two teeth as “[e]xtraction indicated” – tooth #5 and tooth #9. Id. at 21.26
Dr. Haines “stressed removal of bad teeth,” advised Plaintiff he was “not eligible” for any
partials or dentures and told Plaintiff he could not continue antibiotics and pain medications
indefinitely. Id. at 22.
Approximately two months later, on September 14, 2021, Dr. Haines extracted
Plaintiff’s tooth #4 as “not restorable.” Id. at 10. The treatment notes include “physical
findings” that tooth #4 was “broken off to gumline.” Id.
In sum, the record shows that during the period of his incarceration at WSKCC, the
dental treatment Plaintiff received included the prescription of antibiotics and ibuprofen,
the conduction of two plaque tests, and the extraction of tooth #12. Two months after
Plaintiff left WSKCC and arrived at HMCC, tooth #4 was extracted. Dr. Aitson did not
perform either of the two extractions. His care was limited to prescribing antibiotics and
ibuprofen, conducting the two plaque tests pursuant to the ODOC’s dental policy, and a
post-operative visit regarding the extraction of tooth #12.
IV. Discussion
A. Exhaustion of Administrative Remedies
The Court first addresses the affirmative defense of exhaustion of administrative
remedies. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
26 The Plan contains no reference to tooth #4 – a tooth, as discussed above, that Plaintiff references
in his Objection but that had not yet been extracted at the time of the filing of his Second Amended
Complaint.
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in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.”); see also Jones v. Bock, 549 U.S. 199, 216 (2007). “There is no
question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot
be brought in court.” Id. at 211. The exhaustion requirement applies on a claim-by-claim
basis. Id. at 223. “Requiring exhaustion allows prison officials an opportunity to resolve
disputes concerning the exercise of their responsibilities before being haled into court.” Id.
at 204; see also Estrada, 2024 WL 3420365 at *9 (“Requiring a prisoner to file a grievance
is not a technicality; instead it is mandatory to ensure prison efficiency and administrative
agency authority by allowing prison officials to promptly review incidents and gather
evidence, as well as maintain control over the flow of prison life.” (internal quotation marks
and citations omitted)).
To properly exhaust, an inmate must comply with prison grievance procedures.
“The level of detail necessary in a grievance to comply with the grievance procedures will
vary from system to system and claim to claim, but it is the prison’s requirements, and not
the PLRA, that define the boundaries of proper exhaustion.” Id. at 218. Further, the Tenth
Circuit has held that “[a properly completed] grievance satisfies § 1997e(a)’s exhaustion
requirement so long as it provides prison officials with enough information to investigate
and address the inmate’s complaint internally.” Kikumura v. Osagie, 461 F.3d 1269, 1285
(10th Cir. 2006), overruled on other grounds as recognized in Robbins v. Okla., 519 F.3d
1242, 1246 (10th Cir. 2008).
Plaintiff’s January 15, 2021 Grievance addresses: (1) a request for implants; (2) a
complaint that he had not yet been scheduled for a plaque test; and (3) a reference to a two-
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week supply of antibiotics and pain medication that was not “preventing the decay, cavities,
discomfort or swelling.” His February 8, 2021 Grievance Appeal makes a rather vague
reference to “periodontal disease” and that “delay is not helpful to treatment of this
disease.” And he again appears to protest the denial of any request for implants.
Plaintiff’s claim against Dr. Aitson does not involve any request for implants. The
Court, therefore, focuses on his request to be scheduled for a plaque test and his complaint
that as of January 15, 2021, the antibiotics and pain medication were not preventing the
decay of his teeth or his discomfort.
As to the plaque test, Plaintiff was scheduled to receive the test in response to his
grievance submission. The plaque test was then administered contemporaneously with the
grievance response on January 28, 2021. To the extent Plaintiff’s claim against Dr. Aitson
is based on delay in scheduling the initial plaque test, that claim is exhausted.
But Plaintiff’s Second Amended Complaint alleges that Dr. Aitson refused to
schedule Plaintiff for a follow-up plaque test. See Doc. No. 23-3 at 4 (emphasis added).
As the record shows, Plaintiff’s initial plaque test score was not within the acceptable range
of the Dental Policy percentages to render him eligible for restorative treatment. In his
Complaint, Plaintiff contends Dr. Aitson failed to reschedule Plaintiff for a follow-up
plaque test. But Plaintiff did not submit any additional grievance regarding a follow-up
plaque test. Therefore, any claim based on this conduct is not exhausted.27 See Barnes v.
27 Moreover, as set forth in the recitation of Dr. Aitson’s treatment of Plaintiff, it appears that
Plaintiff was scheduled for a follow-up plaque test on February 10, 2021, but that Plaintiff did not
show for that test. Regardless, Plaintiff was given a follow-up plaque test on March 17, 2021, at
which time Plaintiff scored within the eligibility range for restorative treatment. He was still
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Allred, 482 F. App’x 308, 312 (10th Cir. 2012) (“[T]he similarity of issues alone is
insufficient to satisfy exhaustion of administrative remedies.”); Sayed v. Profitt, 415 F.
App’x 946, 949 n. 4 (10th Cir. 2011) (prisoner who had raised and exhausted the issue of
a right to perform partial ablution did not also raise the issue of a right to perform full
ablution, despite the similarity of the issue).
What is left for the Court’s consideration is Plaintiff’s complaint that the antibiotics
and pain medication prescribed by the dentist were not preventing the decay, cavities,
discomfort or swelling with his teeth. Plaintiff’s grievance raised a generalized concern.
He did not identify any particular dental problem, or any specific treatment that he
requested (other than the scheduling of a plaque test) and that was, or was not, being
provided to him. This generalized grievance did not “sufficiently raise the issue in his civil
complaint” concerning either seven months of delayed treatment or the emergency
extraction of his tooth. Barnes, 482 F. App’x at 312; see also Ross v. Cnty. of Bernalillo,
365 F.3d 1181, 1188 (10th Cir. 2004) (noting that prisoner’s complaint “articulate[d] a
laundry list of problems he encountered in seeking to obtain appropriate medical treatment
from the time of his [shoulder] injury on November 29, 1999 to July 2000[,] but that record
was devoid of evidence that prisoner made use of the grievance procedures to complain of
inadequate medical care after December 1, 1999) overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007)).
required to pass a second plaque test, but the record demonstrates that no dentist was available at
WSKCC to provide that plaque test. Plaintiff did not grieve any issue related to a follow-up plaque
test or the unavailability of a dentist to provide the same.
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Plaintiff’s dental complaints after the conclusion of the appeal of Grievance No. 21-
03 are not sufficiently exhausted as he did not bring any such matters to the attention of
prison officials. See Ross, 365 F.3d at 1188 (“A grievance obviously cannot exhaust
administrative remedies for claims based on events that have not yet occurred. Nor does a
grievance exhaust administrative remedies for all future complaints of the same general
type.”).
Thus, while the Court does not construe Plaintiff’s grievance submissions as
narrowly as Dr. Aitson, i.e., that Plaintiff’s grievance was limited to the issue of a request
for implants or dentures, the Court finds summary judgment in favor of Dr. Aitson is proper
on grounds of failure to exhaust as to any Eighth Amendment claim based on: (1) a delay
in the scheduling of any follow-up plaque test, i.e., any plaque test to be conducted after
the initial January 28, 2021 plaque test; and (2) any delay or denial of dental treatment
occurring subsequent to the submission of Grievance No. 21-03 or, more generously,
subsequent to the denial of his appeal of Grievance No. 21-03.
As to Plaintiff’s claim against Defendant Siegfried, Plaintiff did not raise any claim
in Grievance No. 21-03 that addressed his complaint that WSKCC was inadequately staffed
or that the dental care policies were unconstitutional.28 The Court, therefore, concurs with
28 In the context of complaining that his plaque test had not been timely scheduled, Plaintiff stated:
“[t]he elements of a dental care system are similar to the elements of a medical care system and
for example, involve ensuring that an adequate number of appropriately qualified staff [are]
available.” See Doc. No. 62-25 at 5 (citations omitted). But he did not address this issue in his
underlying request to staff, nor does the grievance specifically complain about staffing issues.
Moreover, in his appeal of the denial of Grievance No. 21-03, Plaintiff acknowledged that he “was
scheduled for a plaque test.” See Doc. No. 62-25 at 7. And he did not raise any issue on appeal
regarding any alleged inadequate staffing as the basis for his grievance.
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the findings of the Magistrate Judge that Defendant Siegfried is entitled to judgment as a
matter of law in his favor because Plaintiff failed to exhaust administrative remedies.29
Although the Magistrate Judge addressed, in the alternative, the merits of Plaintiff’s Eighth
Amendment, individual-capacity claim against Defendant Siegfried, the Court deems any
alternative finding unnecessary.
Similarly, Plaintiff’s claim against Defendant Foster is not exhausted. His claim
against her relates to her role in denying Grievance No. 21-03. He did not separately grieve
any issue pertaining thereto. And in his appeal of Grievance No. 21-03, Plaintiff stated,
without any specificity, only that Defendant Foster had committed “probable error” in her
decision and then referenced a state statutory provision defining acts constituting the
practice of dentistry. Plaintiff did not assert in any way that Defendant Foster personally
delayed providing dental care to Plaintiff as he alleges in the Second Amended Complaint.
Alternatively, even if Defendant Foster’s role in denying the grievance were
sufficient to demonstrate her personal participation, for the reasons discussed infra, her
conduct did not give rise to Eighth Amendment liability.
29 In his Objection to the Sixth R.&R., Plaintiff states that he exhausted his policy claim against
Defendant Siegfried and points to his January 4, 2021 Request to Staff where he states that due to
a facility lockdown, he had not reviewed the Dental Policy. See Doc. No. 62-25 at 2. Plaintiff
argues that this statement constitutes sufficient notice to prison officials that “the policies w[ere]
the result of delays and denial of Plaintiff receiving any restoration treatment.” See Doc. No. 129
at 7. The Court disagrees. Nothing about Plaintiff’s statement that he wanted to review the Dental
Policy would alert prison officials that he was challenging that policy as causing a delay in his
dental care. Moreover, as previously set forth, Plaintiff never filed a grievance challenging the
requirement that he pass the plaque tests prior to receiving treatment. He only filed a grievance to
challenge the alleged delay in scheduling an initial plaque test.
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B. Plaintiff’s Eighth Amendment Claim – Delay / Denial of Dental Care
Having determined the scope of Plaintiff’s Eighth Amendment claim that is properly
exhausted, the Court proceeds to address the merits of that claim.
1. Official Capacity Eighth Amendment Claim
The Court grants Defendants’ Motions to Dismiss, without converting them to
motions for summary judgment, as to Plaintiff’s official capacity Eighth Amendment
claims on grounds of Eleventh Amendment immunity. The Eleventh Amendment grants
states immunity from suits brought pursuant to § 1983 unless such immunity is specifically
waived or overridden by Congress. See Welch v. Tex. Dept. of Highways and Public Trans.,
483 U.S. 468, 472-74 (1987) (finding federal courts barred from considering § 1983 actions
against states unless state’s sovereign immunity is specifically waived or overridden by
Congress). Congress did not abrogate the states’ Eleventh Amendment immunity through
the enactment of 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979).
Neither has the State of Oklahoma waived its sovereign immunity except in limited
circumstances not applicable here. See Ramirez v. Okla. Dep’t of Mental Health, 41 F.3d
584, 589 (10th Cir.1994) (noting that “Oklahoma has not waived its Eleventh Amendment
immunity”).
Moreover, a claim against Defendants in their official capacities is essentially a
claim against the State of Oklahoma and therefore, the amendment’s proscription applies
to them. Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir.
2010) (“‘[A]suit against a state official in his or her official capacity . . . is no different than
a suit against the State itself.’” (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58,
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71 (1989)). And “Eleventh Amendment immunity applies regardless of whether a plaintiff
seeks declaratory or injunctive relief, or money damages.” Steadfast Ins. Co. v. Agric. Ins.
Co., 507 F.3d 1250, 1252 (10th Cir. 2007). Defendants, therefore, are immune from suit
in their official capacities.30
2. Individual Capacity Eighth Amendment Claim
Plaintiff also seeks to impose liability against Defendants in their individual
capacities for violating his Eighth Amendment rights. As set forth, Plaintiff’s claim against
Defendant T. Hastings Siegfried is unexhausted and the Court grants summary judgment
in favor of Defendant Hastings Siegried on this basis, deeming it unnecessary to review
the merits of Plaintiff’s Eighth Amendment claim against him.
Plaintiff’s individual-capacity claim against Dr. Aitson is partially exhausted. The
Court reviews the merits of this claim only as to the matters that were properly exhausted.
As for Defendant Foster, like Defendant Hastings Siegfried, the Court finds that
Plaintiff’s claim against her is unexhausted. The Court nonetheless addresses, in the
alternative, the merits of Plaintiff’s individual-capacity claim against her.
30 Plaintiff’s Eighth Amendment claim is limited to conduct which occurred at WSKCC where he
is no longer incarcerated. In fact, WSKCC is a closed facility. And Plaintiff does not seek any
form of prospective injunctive relief against Defendants. Instead, Plaintiff only seeks monetary
damages against Defendants Aitson, Siegfried and Foster. See Second Am. Compl. [Doc. No. 23-
3] at 10, 12. Therefore, the Ex parte Young exception does not apply. See Muscogee (Creek)
Nation v. Pruitt, supra, 669 F.3d at 1167 (“To determine whether the Ex parte Young exception
applies, we “need only conduct a straightforward inquiry into whether the complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective.” (internal
quotation marks and citation omitted)).
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a. Eighth Amendment Standard – Deliberate Indifference to
Dental Needs
“Deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” See
Requena v. Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018) (brackets and internal quotation
marks omitted). A prisoner’s medical needs include proper dental care. Ramos v. Lamm,
639 F.2d 559, 576 (10th Cir. 1980).
A deliberate indifference claim has “both an objective and a subjective component.”
Id. (internal quotation marks omitted). The objective component requires evidence that the
medical deprivation was “sufficiently serious.” Id. (internal quotation marks omitted). The
subjective component requires evidence that “the prison official acted with a sufficiently
culpable state of mind.” Id. (internal quotation marks omitted).
“[A]ccidental or inadvertent failure to provide adequate medical care, or negligent
diagnosis or treatment of a medical condition do not constitute a medical wrong under the
Eighth Amendment.” Ramos, 639 F.2d at 575. An inmate “has a constitutional right only
to medical care – not to the type or scope of medical care which he personally desires.”
Sherman v. Klenke, N.P., 653 F. App’x 580, 586 (10th Cir. 2016) (quoting Henderson v.
Sec’y of Corr., 518 F.2d 694, 695 (10th Cir. 1975) (additional citation omitted)). “A mere
difference of opinion between the prison’s medical staff and the inmate as to the diagnosis
or treatment which the inmate receives does not support a claim of cruel and unusual
punishment. Ramos, 639 F.2d at 575. This is because the Eighth Amendment protects
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from the “infliction of punishment” – it does not give rise to claims sounding in negligence
or medical malpractice. Self v. Crum, 439 F.3d 1227, 1235 (10th Cir. 2006).
i. Objective Component
The Court assumes, without deciding, that Plaintiff’s dental pain satisfies the
objective component of a deliberate indifference claim. The record supports a reasonable
inference that Plaintiff suffered pain for several days if not weeks and that he continued to
require pain medication that he claimed was ineffective. See Al-Turki v. Robinson, 762
F.3d 1188, 1193-94 (10th Cir. 2014) (declining to “precisely delineate . . . the exact
boundaries of the line between a trivial twinge of pain and the significant substantial pain
that gives rise to an Eighth Amendment claim, but finding that “several hours of untreated
severe pain . . . fall[s] on the actionable side of the line”).
ii. Subjective Component
The Court focuses its inquiry on the subjective component. Plaintiff must show that
Dr. Aitson and/or Defendant Foster acted with a “sufficiently culpable state of mind.”
Requena, 893 F.3d at 1215 (internal quotation marks omitted). “The deliberate
indifference standard lies ‘somewhere between the poles of negligence at one end and
purpose or knowledge at the other.’” Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005)
(quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)). Under this standard, “a prison
official cannot be held liable ‘unless the official knows of and disregards an excessive risk
to health and safety; the official must both be 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.’” Self, 439 F.3d at 1231 (quoting Farmer, 511 U.S. at 837).
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b. Dr. Aitson
In his Objection, Plaintiff argues that the initial examination by Dr. Aitson
demonstrates he knew that Plaintiff was suffering from “a progressive destruction of bone
and tooth decay.” Doc. No. 125 at 7 (emphasis in original). He references, in part, Dr.
Aitson’s “findings” set forth in his “DENTAL TREATMENT PLAN.” Although Plaintiff
acknowledges his plaque index test on January 28, 2021 rendered him ineligible for
restorative treatment, he nonetheless argues it was “obvious” to Dr. Aitson that Plaintiff’s
“progressive cavities” were causing his “decaying, painful tooth condition to worsen and
required additional treatment.” Id. at 9. And Plaintiff further argues that Dr. Aitson
“provided medication he knew was not working.” Id. at 11; see also id. at 18 (Dr. Aitson
“intentionally prescribed Plaintiff the same ineffective medicine [clindamycin] he knew
was not improving Plaintiff[‘s] teeth conditions nor relieving pain.”).
As Plaintiff acknowledged in his own grievance submissions, Dr. Aitson offered to
pull the teeth that were causing Plaintiff’s pain, but Plaintiff did not agree with this course
of treatment. Instead, he wanted his teeth to be “restored.” But to qualify for such
restorative treatment, Plaintiff was required to pass the plaque test.31 The record
demonstrates Dr. Aitson scheduled Plaintiff for two plaque tests. Plaintiff did not pass the
31 Plaintiff takes issue with the Magistrate Judge’s finding that Dr. Watterson did not recommend
Plaintiff for restorative treatment. See Pl.’s Obj. [Doc. No. 125] at 3; Fifth R.&.R. [Doc. No. 122]
at 10. But the Court finds this issue non-dispositive. Even if Dr. Watterson had determined tooth
# 12 qualified for restorative treatment, Plaintiff was required to follow the Dental Policy, i.e., pass
the two plaque tests, before receiving that treatment. Moreover, Plaintiff’s grievance was based
on the failure to timely schedule a plaque test. He did not raise any issue that the requirement of
passing the plaque test should not apply to him or otherwise challenge the Dental Policy’s
provisions with respect to the plaque-test requirement.
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first one, but did pass the second one. Under the Dental Policy, Plaintiff had to pass two
plaque tests before becoming eligible for restorative care.
The record fails to support a reasonable inference that Dr. Aitson acted with
deliberate indifference. Instead, the record demonstrates a classic example of a
disagreement in treatment. Plaintiff did not want any of his teeth to be pulled even though
this treatment option was available to him. Instead, he wanted his teeth to be restored.32
In response to Plaintiff’s requested treatment, Dr. Aitson proceeded to follow the Dental
Policy by providing Plaintiff the required plaque tests. To this end, there is no evidence
that Dr. Aitson intentionally denied a prescribed course of treatment, including treatment
of Plaintiff’s pain. Redmond v. Crowther, 882 F.3d 927, 939–40 (10th Cir. 2018)
(explaining “[t]he subjective component requires showing the prison official ‘knew the
inmate faced a substantial risk of harm and disregarded that risk by failing to take
reasonable measures to abate it.’” (quoting Martinez v. Beggs, 563 F.3d 1082, 1088–89
(10th Cir. 2009)); see also Self, 439 F.3d at 1233 (“So long as a medical professional
provides a level of care consistent with the symptoms presented by the inmate, absent
evidence of actual knowledge or recklessness, the requisite state of mind cannot be met.”).
To the contrary, Dr. Aitson provided antibiotics and pain medications to Plaintiff to help
alleviate his symptoms in the interim. See Wishneski v. Andrade, 572 F. App’x 563, 569
(10th Cir. 2014) (“[I]n assessing the chosen method of treatment, it must be kept in mind
32 As early as Plaintiff’s January 4, 2021 Request to Staff, he acknowledged that it was “unhealthy”
for him to “keep the teeth that are decayed.” See Doc. No. 62-25 at 3. At that time he was
requesting implants.
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that a doctor is required to take only ‘reasonable measure to abate’ the inmate’s medical
condition.” (quoting Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006)). Nothing
about this conduct evinces deliberate indifference.
Plaintiff relies heavily on an unpublished Tenth Circuit decision to support his
claim, Brooks v. Colo. Dep’t of Corr., 715 F. App’x 814 (10th Cir. 2017). In Brooks, the
prison dentist offered to remove Mr. Brooks’s tooth. The tooth required removal because
the dentist had neglected to provide dental care for months. The district court found no
Eighth Amendment violation based on the dentist’s offer to remove the tooth. But the
Tenth Circuit faulted the district court for “fail[ing] to consider Mr. Brooks’s evidence
about neglect in the preceding months.” Id. at 822 (emphasis added). The Tenth Circuit
relied on the following as evidence of the dentist’s deliberate indifference:
• Dr. Blake had known in May 2010 that Mr. Brooks suffered from a
cavity but did nothing.
• Mr. Brooks had cracked the same tooth one month later and asked for
a dentist to fix the tooth.
• Mr. Brooks had complained 2-3 months later that he needed to see a
dentist as soon as possible because he had a tooth with exposed
nerves, resulting in great pain.
• A prison official had recognized the next day that Mr. Brooks was in
pain and that his tooth was decaying.
• Dr. Blake had failed to provide treatment again until January 2011,
over 7 months after he had diagnosed the cavity.
Id. at 822 (emphasis added). The Tenth Circuit held that “[t]his evidence could lead a
reasonable fact-finder to conclude that Dr. Blake had turned a blind eye to a sufficiently
serious dental condition.” Id.
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The Court finds this case is distinguishable from Brooks. First, Dr. Aitson did not
“do nothing.” By Plaintiff’s own admissions, Dr. Aitson offered to pull Plaintiff’s teeth at
the outset of his treatment.33 Because Plaintiff did not want this treatment, Dr. Brooks
prescribed antibiotics and pain medication and told Plaintiff he would set an appointment.
Second, Dr. Aitson administered two plaque tests in accordance with the Dental Policy.
Third, Dr. Aitson promptly saw Plaintiff in response to each of his requests for dental care.
Although Plaintiff argues his dental care was unnecessarily delayed, a delay in treatment
that is unintentional, or even negligent, however serious the harm, does not violate the
Constitution.
Unlike Mr. Brooks who was provided no treatment, Plaintiff was provided
treatment, but disagreed with the treatment being provided. The extraction of tooth # 12
in May 2021, did not result from a lack of treatment, or Dr. Aitson turning a blind eye, but
instead from Plaintiff’s disagreement about the type of treatment he should receive.34 On
the record presented, the undisputed facts fail to demonstrate Dr. Aitson acted with the
33 In Stack v. McCotter, 79 F. App’x 383, 389 (10th Cir. 2003), the court referenced the fact that
“[a]t least one court has held that a policy of requiring that only extractions will be performed for
dental problems is constitutionally deficient.” Id., 79 F. App’x at 388 (citing Heitman v. Gabriel,
524 F. Supp. 622, 627 (W.D. Mo. 1981)). Of course, the ODOC’s Dental Policy is not an
“extraction only” policy, nor has Plaintiff raised any such challenge.
34 Plaintiff argues in his Objection that he suffered the “unnecessary loss of an easily reparable
tooth” but offers not facts to support that his tooth was “easily reparable.” See Doc. No. 125 at 12.
The record shows to the contrary. As set forth, tooth #12 was identified upon initial examination
by Dr. Aitson as having “decay into pulp.”
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requisite mental state to satisfy the subjective component of Plaintiff’s Eighth Amendment
claim.35
c. Defendant Foster
Finally, Plaintiff has failed to satisfy the subjective component with respect to any
Eighth Amendment claim against Defendant Foster. In his Objection to the Sixth R.&R.,
Plaintiff states that Defendant Foster “could be held liable for her inaction from 1-21-2021
til [sic] 1-28-2021.” See Doc. No. 129 at 32. He points, again, to her review of Plaintiff’s
grievance and his dental records in relation thereto. He notes that on January 22, 2021,
Plaintiff presented to medical with a toothache and swollen face and states that Defendant
Foster “had first-hand information” that his “conditions were worsening and [he] needed
immediate restorative care.” Id. And he argues that she “did nothing about getting Plaintiff
any treatment to relieve pain or getting Plaintiff to a dentist that would or could. Id. at 32-
33.
Fundamentally, Defendant Foster’s role in denying Grievance No. 21-03 is not
actionable. Plaintiff wholly fails to allege any facts to show that she personally participated
in the delay or denial of dental care. Instead, she only reviewed Plaintiff’s dental records
for purposes of addressing Grievance No. 21-03 as the CHSA. See Gallagher v. Shelton,
35 Plaintiff also relies on Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001). In that case, the
Tenth Circuit addressed the sufficiency of allegations of deliberate indifference in the context of a
dismissal motion under Fed. R. Civ. P. 12(b)(6) and not in the context of a fully developed
summary judgment record. Additionally, the facts of that case did not involve dental care but,
instead, a surgery on an inmate’s finger and post-operative signs of complications from that
surgery. The plaintiff alleged those complications had not been adequately addressed by the
prison’s doctor and assistant because they failed to timely seek specialized medical assistance. The
Court finds Oxendine inapposite.
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587 F.3d 1063, 1069 (10th Cir. 2009) (“[A] denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged by plaintiff, does not establish
personal participation under § 1983”); Sherman, 653 F. App’x at 591 (allegations that
doctor was aware of prisoner’s alleged inadequate course of treatment and improperly
denied his grievance related to delay and denial of care failed to establish doctor’s personal
participation and dismissal of Eighth Amendment claim, therefore, was warranted).
Notably, in Bird v. Lampert, 839 F. App’x 218 (10th Cir. 2020), the Tenth Circuit
addressed a strikingly similar claim against a grievance manager at the prison. The court
found no personal participation by the grievance manager. Id. at 222-23. As the court
explained, the grievance manager “did nothing more than deny [the] prison grievance on
the basis that [plaintiff] was receiving dental care and was scheduled to soon see [the
dentist] and plaintiff failed to “cite any evidence that [the grievance manager] was aware
of the delay before he filed his grievance or that she had any involvement in, or prior
knowledge of, [the prison’s] difficulty staffing a full-time dentist.”). Id. at 223.
Even if the Court were to presume that Defendant Foster was somehow involved in
the delay of Plaintiff’s dental care, Plaintiff has failed to show that she acted with deliberate
indifference. Plaintiff points only to a seven-day period in which Defendant Foster was
involved in any such treatment. And, contrary to Plaintiff’s assertion, in response to the
grievance he was scheduled for a plaque test and seen by Dr. Aitson on January 28, 2021,
on the same day that Defendant Foster responded to his grievance. At that time, Dr. Aitson
prescribed additional antibiotics and pain medication. Thus, the record shows that to the
extent Defendant Foster may have been involved in his care, she facilitated Plaintiff
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receiving treatment and did not ignore him. The record fails to support any reasonable
inference that Defendant Foster acted with deliberate indifference to Plaintiff’s dental
needs.
In reaching the conclusion that Dr. Aitson and Defendant Foster are entitled to
summary judgment, the Court is certainly not unsympathetic to Plaintiff’s serious dental
needs or the plight of many incarcerated persons who have such needs. Indeed, as the
Tenth Circuit has long-recognized, “[p]risoners generally have more extensive dental
problems than the average citizen. Consequently dental care is one of the most important
medical needs of inmates. Ramos, 639 F.2d at 576. But the record here, as to Plaintiff’s
properly exhausted claim, simply fails to support any reasonable inference of Defendants’
deliberate indifference.
V. Additional Issues
As noted, the R.&R. did not address additional bases for dismissal raised in
Defendant Aitson’s Motion – (1) Dr. Aitson’s lack of personal participation; (2) Plaintiff’s
failure to state a claim for a due process violation; and (3) qualified immunity. The facts
set forth above adequately demonstrate Defendant Aitson’s personal participation in the
alleged violation of Plaintiff’s Eighth Amendment rights, but fail to demonstrate the
subjective component of Plaintiff’s Eighth Amendment claim. See, e.g., Vasquez v. Davis,
882 F.3d 1270, 1275 (10th Cir. 2018) (to recover damages in a § 1983 action, a plaintiff
must show that the defendant personally participated in the alleged constitutional violation;
where the plaintiff alleges a defendant violated the Eighth Amendment by acting with
deliberate indifference to a serious medical need, the plaintiff must prove as to the
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46
defendant both the objective and subjective component of the claim). The Court further
finds Plaintiff has not raised any claim against Dr. Aitson for violation of his due process
rights and, therefore, deems it unnecessary to address that ground for dismissal. As to Dr.
Aitson’s assertion of qualified immunity, he argued that Plaintiff failed to state a claim
based on the fact that he did not receive dental implants. But the Court does not construe
Plaintiff’s Eighth Amendment claim as based on a denial of dental implants and, therefore,
rejects Defendant’s assertion of qualified immunity on that ground.36
VI. Conclusion
IT IS THEREFORE ORDERED as follows:
1) Defendant Aitson’s Motion to Dismiss [Doc. No. 110] is GRANTED as to
Plaintiff’s Eighth Amendment official capacity claim and that claim is DISMISSED
WITHOUT PREJUDICE as barred by Eleventh Amendment immunity.37
36 Defendants Siegfried and Foster also raise the defense of qualified immunity. But they do so in
the most conclusory manner. See Defs.’ Mot. at 23-24. And because the Court finds summary
judgment is proper in favor of Defendants on grounds of exhaustion or, alternatively as to
Defendant Foster on grounds that Plaintiff fails to demonstrate a violation of his Eighth
Amendment rights, the Court need not address the issue of qualified immunity. The Court
nonetheless notes that such a defense may be successful on grounds of lack of clearly established
federal law. See Bird, 839 F. App’x at 224 (addressing specificity requirement of demonstrating
clearly established federal law and finding no clearly established federal law as to Plaintiff’s claims
against corrections defendants for delay in dental care under facts similar to those at issue here).
37 “Because the Eleventh Amendment involves sovereign immunity, the official capacity claims
should [be] dismissed ‘without prejudice’ rather than ‘with prejudice.’” Shue v. Lampert, 580 F.
App’x 642, 644 (10th Cir. 2014) (citing Pettigrew v. Okla. ex rel. Okla. Dep’t of Pub. Safety, 722
F.3d 1209, 1212 (10th Cir. 2013); Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1, Logan
Cnty., Okla. v. Guthrie, 654 F.3d 1058, 1069 n. 9 (10th Cir. 2011)).
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2) Defendant Aitson’s Motion to Dismiss [Doc. No. 110], construed as a motion
for summary judgment, is GRANTED IN PART as to Plaintiff’s Eighth Amendment,
individual-capacity claim.
3) The Court ADOPTS the Fifth Supplemental Report and Recommendation
[Doc. No. 122] to the extent it is not inconsistent with the supplemental findings set forth
herein.
4) The Motion to Dismiss [Doc. No. 71] of Defendants Siegfried and Foster is
GRANTED IN PART as to Plaintiff’s Eighth Amendment official capacity claims against
them and those claims are DISMISSED WITHOUT PREJUDICE as barred by Eleventh
Amendment immunity.
5) The Motion to Dismiss [Doc. No. 71] of Defendants Siegfried and Foster,
construed as a motion for summary judgment, is GRANTED IN PART as to Plaintiff’s
Eighth Amendment, individual-capacity claims against them.
6) The Court ADOPTS the Sixth Supplemental Report and Recommendation
[Doc. No. 123] to the extent it is not inconsistent with the supplemental findings set forth
herein.
Accordingly, summary judgment is entered in favor of Defendants Aitson, Siegfried
and Foster as to Plaintiff’s Eighth Amendment individual-capacity claims. Plaintiff’s
Eighth Amendment official-capacity claims against Defendants Aitson, Siegfried and
Foster are dismissed without prejudice. A separate judgment will be entered.
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IT IS SO ORDERED this 19th day of July, 2024.
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