David v. Crow et al

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AUTHENTICATE
U.S. GOVERNMEN

INFORMATION

Case 5:21-cv-00534-SLP Document122 Filed 09/09/22 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JEROME ADRIAN DAVID,
Plaintiff,
CIV-21-534-SLP

)

)

)

)

Vv. )
)

SCOTT CROW, et. al., )
)

)

Defendants.

FIFTH 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
nights. Before the Court is the Motion to Dismiss filed by Defendant Michael
Aitson, Doc. No. 110, to which Plaintiff has responded. Doc. No. 121. 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 reasons set forth herein, it is
recommended the Motion to Dismiss, converted to a Motion for 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,

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Oklahoma, Defendants violated his constitutional rights. See generally Doc. No.
23. Plaintiff asserts Defendant Aitson, a WKCC dentist, violated his rights under
the Eighth Amendment related to Plaintiff’s dental care. Defendant Aitson has
filed a Motion to Dismiss wherein he requests dismissal of Plaintiff’s claims based
upon, inter alia, failure to state a claim upon which relief can be granted. Doc.
No. 110.
Because Defendant relies, in part, on evidentiary documents outside of the
pleadings 	in 	support 	of 	his 	Motion, 	and 	Plaintiff 	was 	advised 	of 	his
responsibilities under Fed. R. Civ. P. 12 and 56 in responding to Defendant’s
Motion, see Doc. No. 111, 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 on] material beyond the pleadings in support of . . . 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.”).
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II. Standard of Review
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.,
475 U.S. 574, 587 (1986) (quotations omitted).
III. Requirement for Medical Care
The Eighth Amendment “imposes duties on [prison] officials, who must
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provide humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care, and must ‘take
reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517 (1984)). The
Supreme Court first recognized claims for deliberate indifference to a prisoner’s
medical needs in Estelle v. Gamble, 429 U.S. 97 (1976). The Court held that
prison officials violate the Eighth Amendment’s ban on cruel and unusual
punishment if their “deliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain.” Id. at 104 (quotations
omitted).
For over forty years, the Tenth Circuit has recognized that “dental care is
one of the most important medical needs of inmates.” Ramos v. Lamm, 639 F.2d
559, 576 (10th Cir. 1980). Other jurisdictions, too, recognize that “the [E]ighth
[A]mendment requires [] prisoners be provided with a system of ready access to
adequate dental care.” Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).
See also Williams v. York, 891 F.3d 701, 707 (8th Cir. 2018) (stating that an
inmate’s right to treatment for serious and painful dental conditions has been
clearly established for more than three decades); Carlucci v. Chapa, 884 F.3d 534,
539 (5th Cir. 2018) (finding allegations of severe physical pain and denial of
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recommended dental treatment are sufficient to state a plausible claim for relief);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (noting principle that
deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment
applies equally to dental care); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995)
(“A three-week delay in dental care, coupled with knowledge of the inmate-
patient’s suffering, can support a finding of an Eighth Amendment violation under
section 1983.”).
IV. Dental Care Policy
According 	to 	the 	Oklahoma 	Department 	of 	Corrections 	(“ODOC”)
policies, 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. 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 within Priority I-V. Doc.
No. 62-14 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
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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
by a two week minimum time frame, for inmates who will retain any natural
teeth.” Id. at 7.
V. Eighth Amendment: Deliberate Indifference
Plaintiff alleges that while he was confined at WKCC, Defendant Aitson
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failed to provide him with restorative dental care. Doc. No. 23-3 at 4. Specifically,
Plaintiff asserts that Defendant Aitson examined his teeth and screened him as
“priority III per OP-140124 #3 (periodontal disease, mesial decay, severe
cavities, etc.)” but delayed Plaintiff’s Priority III treatment. Id. Plaintiff contends
this delay caused great pain and discomfort and resulted in deterioration of his
teeth that would have been otherwise avoidable. Id. He further alleges the delay
in care resulted in ongoing pain, discomfort, sleep deprivation, biting holes in his
mouth because it was difficult for him to chew food properly, and swelling in his
face. Id. According to Plaintiff, his dental condition deteriorated and he had to
undergo a tooth extraction, and possibly more extractions in the future. Id.
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 Cnty., 768 F.2d 303, 307 (10th Cir. 1985). “Deliberate
indifference” is defined as knowing of and disregarding an excessive risk to an
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inmate’s health or safety. Farmer, 511 U.S. 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.
VI. Plaintiff’s Dental Care
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
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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,
therefore, endodontics or extraction is required. Doc. No. 62-14 at 6. Thus,
contrary to Plaintiff’s repeated assertions in his Response, see Doc. No. 121 at 2,
5, 11. Dr. Watterson did not recommend Plaintiff for restorative treatment. Also
pursuant to ODOC policy, because Plaintiff did not require Priority I treatment,
he did not receive any further dental care while at LARC.
Plaintiff arrived at WKCC on November 19, 2020. Id. at 4. On December
7, 2020, Plaintiff submitted a Request for Health Services stating the following:
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[,] it[] even Irritates the nerve
when I eat or drink cold or hot drinks or food.
Doc. No. 63-2 at 2. The following day, Plaintiff’s request was returned with a
notation that an appointment had been scheduled. Id.
On December 9, 2020, Dr. Aitson performed his initial examination of
Plaintiff and rated him as Priority III. Doc. No. 63-1 at 74-75. Dr. Aitson’s
examination 	notes 	indicate 	Plaintiff 	was 	missing 	eleven 	teeth, 	and 	had
decalcification on two teeth, light tooth decay in two teeth, medium tooth decay
in three teeth, and deep tooth decay in two teeth, specifically teeth #5 and #12. Id.
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Regarding each of the latter teeth, Dr. Aitson stated that the decay had extended
into the pulp of the tooth. Id. Dr. Aitson prescribed a thirty-day supply of pain
reliever and an antibiotic to Plaintiff, from December 9, 2020 through January 7,
2021. Doc. No. 63-6 at 29-30.
On 	January 	22, 	2021, 	fifteen 	days 	following 	the 	end 	of 	Plaintiff’s
prescriptions, he presented to medical services with a toothache and swelling in
his face. Doc. No. 63-1 at 63. C. Ritzendollar, ARNP, noted Plaintiff’s previous
examination on December 9, 2020, and that a follow up examination had not been
conducted. Id. Ms. Ritzendollar prescribed Ibuprofen 200 mg, three times per day
for four days, and an antibiotic three times per day for five days. Id.; Doc. No. 63-
6 at 21. She also noted that she would “cosign note to dental for possible [follow-
up][.]” Doc. No. 63-1 at 63. Dr. Aitson electronically signed the record on January
25, 2021. Id. Plaintiff contends his condition constituted a “medical emergency,”
however, 	Ms. 	Ritzendollar 	did 	not 	make 	any 	such 	indication 	within 	the
examination record and in fact, described Plaintiff as being in “mild distress.” Id.
On January 26, 2021, Plaintiff submitted another Request for Health
Services describing his tooth pain and stating that he was awaiting a plaque test.
Doc. No. 63-2 at 3. The following day, Plaintiff received a response indicating an
appointment was scheduled. Id.
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On January 28, 2021, Dr. Aitson performed Plaintiff’s first plaque test and
his plaque index was 43.1%. Doc. No. 63-1 at 6. Thus, he did not qualify for
Priority III restorative treatment, as ODOC policy required a plaque index of 35%
or lower. Doc. No. 62-14 at 7. Dr. Aitson extended Plaintiff’s antibiotic
prescription through February 9, 2021. Doc. No. 63-6 at 19, 20. Notably, Plaintiff
had a dental appointment scheduled with Dr. Aitson for February 10, 2021,
however, Plaintiff failed to attend. Doc. No. 63-1 at 52 (“No show for scheduled
appointment”).
After missing his February appointment, Plaintiff submitted a Request for
Health Services on March 11, 2021, complaining of problems chewing food while
eating, pain, and the need for “infection medicine and pain medicine,” and
requesting Priority III treatment. Doc. No. 63-2 at 4. On March 15, 2021,
Defendant Tammy Lauer, a WKCC dental assistant, responded stating, “You’ve
not been able to pass a plaque test and I rescheduled you to try a plaque test again
& you did not show up. I will reschedule you soon. Please be prepared.” Id. On
March 17, 2021, Dr. Aitson performed another plaque test and Plaintiff’s plaque
index was 31.8%. Doc. No. 63-1 at 50. Dr. Aitson prescribed two months of
antibiotics and pain medication to Plaintiff. Doc. No. 63-6 at 15-16 (prescribed
for time period March 17, 2021 through May 15, 2021).
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Presumably, based on ODOC policy, had Plaintiff’s plaque index been
under 35% on a test performed within two weeks, he would have qualified for
Priority III treatment, which includes “routine restorative dentistry.” Doc. No. 62-
14 at 6-7. However, the record does not indicate another plaque test was
performed within two weeks. Instead, Defendant Lauer explained to Plaintiff in
response to his later Requests for Health Services that Defendant Aitson would
be “out for a while.” Doc. No. 63-2 at 5, 6, 7, 8. The WKCC had a dentist coming
in one time per week for emergencies only. Id. She explained that Plaintiff could
have extractions performed but WKCC was not offering routine care at that time.
Id. Plaintiff informed her that he would not agree to extractions without a plan to
“replace the teeth with substitutes for natural teeth.” Id. at 7.
Plaintiff visited a dentist, Dr. Adam Pottorff, on May 20, 2021. Doc. No.
63-1 at 44. On that date, Dr. Pottorff prescribed Amoxicillin to Plaintiff for a
“previously [diagnosed] condition and [treatment plan].” Id. at 44; Doc. No. 63-6
at 14.
On May 24, 2021, Dr. Pottorff examined Plaintiff and noted the following:
Pt presents with CC: need filling, pain. Pt. states that #5, #12 cause
“severe pain” at night. . . . Pt has current tx plan with #5, #12 dx as
non-restorable due to depth of caries and tx planned for exts.
Explained to pt that teeth require ext. Pt also informed that non-
urgent restorations are not being done at this time due to facility
dentist being absent. Clinic is emergency only at this time. Pt became
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upset 	and 	argumentative, 	demanding 	teeth 	be 	restored. 	Again
explained to pt that #5, #12 cannot be restored and require ext.
Offered to extract #5, #12 today and pt refused. Disp IBU per pt
request and dismissed pt. Pt. has Amox RX prescribed on 5/20/21
that he has not picked up from pill line.
Id. at 43. Dr. Pottorff categorized Plaintiff as a Priority II dental patient. Id.
On June 7, 2021, Defendant Lauer noted the following encounter with
Plaintiff.
This morning, as I was letting a patient out, IM David was standing
at the sick call box with [a sick call request (“SCR”)] in hand. When
he saw me, he said I need to see the dentist. I said he had not put in
a [SCR], and had no appointment. He said well, you wanna take my
tooth out and you’re giving other people a filling. 	I replied, it’s
different – and before I could explain, he said, so I’m different, that’s
it. That’s why you’re treating me this way. I explained that it was a
different situation. Not everyone’s teeth are the same. The tooth that
is bothering you is too decayed to be treated with a filling. I said
you’ve been having problems for some time, but refuse to have the
tooth removed. He said he was putting in another request to see Dr.
Pottorff.
Id. at 42.
On June 14, 2021, Dr. Pottorff extracted Plaintiff’s tooth #12. Id. at 41. On
June 24, 2021, Dr. Aitson performed post-operative follow up, noted the
extraction site was healing, and prescribed a pain reliever and an antibiotic. Id. at
37. By July 4, 2021, Plaintiff was transferred to another facility. Id. at 36.
VIII. Eighth Amendment Applied to Plaintiff’s Dental Care
The primary premise underlying Plaintiff’s Eighth Amendment claim is
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that Dr. Aitson’s alleged delay in treating Plaintiff caused him not only pain and
discomfort but deterioration in his condition warranting a tooth extraction. 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)).
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, 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.
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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.
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 was not the result of
treatment delay but instead extraction was anticipated when Plaintiff arrived at
WKCC.
Moreover, Plaintiff consistently received medical and/or dental care while
he was confined at WKCC. Within two days of Plaintiff requesting health services
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for dental pain on December 7, 2021, Dr. Aitson examined Plaintiff and
prescribed a thirty-day supply of antibiotics and pain medication for his dental
conditions. On January 22, 2021, fifteen days after Plaintiff’s prescriptions ended,
he again requested health services complaining of dental problems. In less than
one week, Dr. Aitson performed Plaintiff’s first plaque test and extended his
prescription through February 9, 2021. To the extent Plaintiff experienced a delay
in receiving the first plaque test, 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 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). Additionally, Plaintiff failed to
attend his next appointment, scheduled for February 10, 2021, the day after his
prescriptions ended.
After missing his February appointment, Plaintiff again requested health
services on March 11, 2021, complaining of dental problems. Within four days,
Dr. Aitson examined Plaintiff, conducted the plaque test that would have been
performed at Plaintiff’s February examination, and prescribed Plaintiff a two-
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month supply of antibiotics and pain medication. Following this appointment, Dr.
Aitson was on a leave of absence from WKCC.
The record is clear that Dr. Aitson consistently provided dental care to
Plaintiff. Prior to Dr. Aitson’s leave of absence, Plaintiff did not complain about
dental problems until his prescriptions ended. When Plaintiff reported dental
problems, Dr. Aitson quickly examined him and prescribed medication. While
Plaintiff may have preferred different treatment, disagreement over a course of
treatment does not amount to a constitutional violation. Ramos, 639 F.2d at 575
(“[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.”); Perkins v. Kansas Dep’t of Corr., 165 F.3d
803, 811 (10th Cir. 1999) (explaining that disagreements with the treatment
provided by prison medical staff do not in themselves rise to the level of deliberate
indifference necessary to show a violation of the Eighth Amendment). Moreover,
Plaintiff’s 	longest 	delay 	in 	receiving 	treatment 	from 	Dr. 	Aitson 	occurred
following Plaintiff’s own failure to attend his February dental appointment.
The undisputed medical record demonstrates that Dr. Aitson consistently
provided medical care to Plaintiff for his dental problems. Plaintiff has not
presented 	any 	evidence 	supporting 	that 	Defendant 	Aitson 	knew 	of 	and
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disregarded an excessive risk to Plaintiff’s health, as required for a valid Eighth
Amendment claim. Farmer, 511 U.S. at 827. Presuming without deciding that Dr.
Aitson delayed some portion of dental care, Plaintiff’s tooth extraction did not
occur because of that delay.
Additionally, there is little doubt Plaintiff was in pain during the time period
relevant to his claim. This fact was acknowledged by Dr. Aitson, as well as other
providers, as they repeatedly prescribed Plaintiff pain medication. Notably,
however, it is not the existence of pain which is forbidden by the Eighth
Amendment, but rather the “unnecessary and wanton infliction of pain.” Sealock,
218 F.3d at 1210 (quoting Wilson, 501 U.S. at 297). Plaintiff’s pain was the result
of a condition for which he was receiving treatment, and the most significant delay
in alleviating Plaintiff’s pain was the result of his own actions. Accordingly, it is
recommended the Court grant summary judgment in favor of Defendant Aitson
against Plaintiff’s Eighth Amendment claim. 1
RECOMMENDATION
Based on the foregoing findings, the undersigned recommends Defendant
Aitson’s Motion to Dismiss, as converted to a Motion for Summary Judgment,
1 Based on this recommendation, it is unnecessary to address Defendant’s remaining
bases for requesting dismissal and/or summary judgment.
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(Doc. No. 110) be granted. Plaintiff is advised of the right to file an objection to
this Fifth Supplemental Report and Recommendation with the Clerk of this Court
by 	September 29th , 2022, in accordance with 28 U.S.C. § 636 and Fed. R. Civ.
P. 72. The failure to timely object to this Fifth 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.”).
This Fifth Supplemental Report and Recommendation does not dispose of
all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 	9 th day of September, 2022.
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