United States District Court, S.D. Indiana, Terre Haute Division
LOUIS H. EARLY, Plaintiff,
R. D. SHEPHERD, KIMBERLY RHOADS, CHRISTOPHER McCOY, UNITED STATES, Defendants.
ENTRY GRANTING IN PART AND DENYING IN PART
INDIVIDUAL DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING UNITED STATES'
MOTION FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Chief Judge.
Louis H. Early, a federal inmate, alleges that he is entitled
to monetary relief because he received inadequate treatment
for his abscessed tooth. The United States of America is
allegedly liable under the Federal Tort Claims Act
(“FTCA”) based on the theory that Dr. R.D.
Shepherd, the Chief Dental Officer at the Federal
Correctional Complex in Terre Haute, Indiana, provided Mr.
Early with inadequate dental care. Dr. Shepherd, Ms. Kimberly
Rhoads, and Mr. Christopher McCoy (collectively, the
“individual defendants”) are allegedly liable
pursuant to the theory recognized in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Mr. Early alleges that Ms. Rhoads was deliberately
indifferent to his dental needs in violation of the Eighth
Amendment, and that both Ms. Rhoads and Dr. Shepherd
retaliated against him for filing grievances, in violation of
the First Amendment.
defendants seek resolution of the claims alleged against them
through summary judgment. Mr. Early concedes that defendant
Christopher McCoy should be granted summary judgment because
there is insufficient evidence to support a claim of
deliberate indifference or retaliation against him.
See dkt 127 at p. 16. Accordingly, all claims
against Mr. McCoy are dismissed and he is entitled to
judgment as a matter of law.
United States argues that Mr. Early cannot establish that the
United States was negligent with respect to the dental care
he received from Dr. Shepherd. The individual defendants
argue that they are entitled to summary judgment because Ms.
Rhoads was not sufficiently involved in the dental treatment
that Mr. Early received and because Bivens liability
does not extend to retaliation claims.
reasons explained below, the United States' motion for
summary judgment, dkt , is denied. The
FTCA claim against the United States based on the dental care
provided to Mr. Early shall proceed. The individual
defendants' motion for summary judgment, dkt , is
granted to the extent that the retaliation
claims are dismissed. This resolves all claims against Dr.
Shepherd. The individual defendants' motion for summary
judgment, dkt , is denied to the extent
that the Eighth Amendment deliberate indifference claims
against Ms. Rhoads shall proceed. The United States' and
individual defendants' collective motion to exclude the
expert testimony of Dr. Jesus Cortes, dkt , is
Standard of Review
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Gekas v. Vasilades, 814 F.3d
890, 896 (7th Cir. 2016). The moving party is entitled to
summary judgment if no reasonable fact-finder could return a
verdict for the non-moving party. Nelson v. Miller,
570 F.3d 868, 875 (7th Cir. 2009). The Court views the record
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor.
Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717
(7th Cir. 2018). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are
left to the fact-finder. Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014). Any doubt as to the existence
of a genuine issue for trial is resolved against the moving
party. Ponsetti v. GE Pension Plan, 614 F.3d 684,
691 (7th Cir. 2010).
the Court must view the facts in the light most favorable to
the non-moving party and all reasonable inferences are drawn
in the non-movant's favor, the following facts are not
necessarily objectively true, but are construed in favor of
Mr. Early for the purposes of resolving the pending motions
for summary judgment.
Dental Care at FCI Terre Haute
Early has been incarcerated at the Federal Correctional
Institution in Terre Haute, Indiana, (“FCI Terre
Haute”) since November 2013.
R.D. Shepherd is the Chief Dental Officer for the Federal
Correctional Complex in Terre Haute (“FCC Terre
Haute”). Dr. Shepherd is primarily responsible for the
inmates assigned to FCI Terre Haute and the Federal Prison
Camp. Dr. Jesus Cortes and Dr. Buckley are dentists primarily
responsible for the United States Penitentiary
(“USP”) inmates. At FCI Terre Haute, Dr. Shepherd
works with one dental hygienist, Kimberly Rhoads, and one
dental assistant, Angie Whitlock.
Rhoads is a registered dental hygienist that began working at
FCC Terre Haute in 2013. As a dental hygienist, Ms. Rhoads
does not interpret x-rays and cannot prescribe antibiotics.
weekday mornings, Dr. Shepherd and Ms. Rhoads have dental
sick call triage, during which inmates present a complaint
form to either Dr. Shepherd or Ms. Rhoads, who then is
supposed to visually examine the inmates and ask questions
about their complaints and pain levels. The inmates are then
scheduled for an appointment according to their complaints,
usually within one to two days.
someone has a dental issue over the weekend, there are nurses
available that can call Dr. Shepherd or Dr. Cortes if there
is an urgent dental need or question. The patients who
present for sick call take priority over routine dental care.
Bureau of Prisons (BOP) has a National Waiting List for
dental care, which is a data bank for the entire BOP. When an
inmate at FCI Terre Haute reaches the top of the National
Waiting List, he is placed on the institutional call-out list
to come down for his appointment. Ms. Rhoads reviews his
medical history in the BOP electronic medical record system,
takes x-rays, which usually consist of four bite wings, and
cleans his teeth. Once the cleaning is complete, Dr. Shepherd
discusses a proposed treatment plan with the inmate and gets
him scheduled for that treatment. Inmates can refuse the
proposed treatment, such as filling or extraction. As part of
the refusal process, inmates are counseled regarding the
risks of refusing the treatment and must sign a refusal form.
BOP's electronic medical records can be accessed at a
later time and changes can be made, but the original entry is
shown in its entirety, even if the provider is making an
amendment to the entry.
and 2015, Christopher McCoy was the Assistant Health Services
Administrator (“AHSA”) at FCI Terre Haute, where
Mr. Early was housed. As AHSA, Mr. McCoy handled the
administrative aspects of the Health Services Department,
such as ensuring that there was sufficient staff to run the
pill lines and see patients and that there were processes in
place to meet the needs of the patient, the doctor's
orders, and medication needs. In his role as AHSA, Mr. McCoy
was not allowed to dictate clinical practice and was not
involved in treating patients at all. He could not prescribe
Early's Dental Care at FCI Terre Haute
Early's dental care at FCI Terre Haute was delayed
because his placement on the National Waiting List was
incorrectly altered. Mr. Early originally requested care on
October 20, 2010. Mr. Early was then transferred to FCI Terre
Haute and again requested dental care on November 2013. As a
result, Mr. Early's original request was marked completed
and the new request was started. On or about September 28,
2015, this error was corrected to reflect his original
request-for-care date of October 20, 2010. The correction was
made by Justin Vos, a dentist and U.S. Public Health Service
Program Manager for the BOP in Washington D.C., in response
to one of Mr. Early's administrative grievances. Dkt
128-14 at p. 3 (email exchange dated September 28, 2015).
Early visited health services on April 25, 2015, seeking
treatment for throbbing pain in his left, back, lower tooth.
He was prescribed Amoxicillin and told to report to dental
Monday, April 27, 2015, Mr. Early appeared for a dental sick
call triage for a tooth complaint on his lower left tooth.
Mr. Early reported that he had been placed on antibiotics and
pain medication over the weekend. The medical record reflects
that Dr. Shepherd noted a “slight swelling on the lower
left” and that Mr. Early's pain level was a two on
a scale of zero to ten. Mr. Early, however, was not examined
by Dr. Shepherd. He was only seen by Ms. Rhoads, the dental
hygienist. Ms. Rhoads visually examined Mr. Early in
the hallway outside of dental and instructed him to complete
the Amoxicillin regimen he was prescribed over the weekend.
She said he was to be seen by Dr. Shepherd after that. Mr.
Early was scheduled for the next available appointment.
Anthony Calabrese, a dental clinic orderly, who witnessed
this encounter, testified:
I observed Early provide a sick call slip to Rhoads, and
explain that he was there for emergency sick call, having
been prescribed amoxicillin over the weekend, and that he was
in pain. Rhoads told Early to continue the antibiotic
treatment, and that he would be placed on call-out for
treatment. All of the interaction between Rhoads and Early
took place in the hallway outside of Dental, and at no time
was Early brought into the Dental Office. At no time was
Shepherd present, nor did he examine Early.
Dkt 128-10 (Calabrese Aff., ¶¶ 12-15) (quote
modified for formatting and to exclude numbering).
Shepherd determines that antibiotics are warranted, he
usually prescribes a regimen of three to five days because he
believes this is a good window for the inmate to be out of
pain and comfortable for his follow-up appointment.
April 27 to April 30, 2015, Mr. Early reported to the
pharmacy to receive his Amoxicillin, but was repeatedly
is an email dated April 29, 2015, at 11:46 a.m. in the record
from Nicole Clingerman to Ms. Rhoades and Dr. Shephard with
the subject line, “Early” that states in its
entirety, “came to pill line looking for ATB???”
Dkt 128-12. There is no response to this email in the record.
dental sick call appointment had been scheduled for Mr. Early
that same day, April 29, 2015 (just two days after his sick
call visit). Once an appointment for an inmate is made, the
appointment is placed on an institutional call-out list,
which is placed in the units. However, Mr. Early was not
placed on the institutional call-out list for April 29, 2015,
as a result of problems with the computer system responsible
for the institutional call-out list. Thus, Mr. Early was
unaware of and unable to attend his scheduled appointment.
Thursday, April 30, 2015, Mr. Early returned to dental sick
call triage complaining of pain in his lower left tooth. Mr.
Early first saw Ms. Rhoads and requested more antibiotics.
When Mr. Early provided Ms. Rhoads evidence that he was not
on the prison's call out for medical appointments on
April 29, 2015 and so did not know to report, Ms. Rhoads
responded that it was not her problem and she did not care.
The total conversation with Ms. Rhoads was 20 words. Mr.
Early never acted in a threatening manner toward Dr. Shepherd
or Ms. Rhoads.
2, 2015, Mr. Early reported to sick call complaining of pain
and discomfort. Mr. Early was seen by RN Corey Pointer. RN
Pointer noted swelling to the outside of his jaw and spoke to
PA Daugherty, who prescribed Amoxicillin, 500 mg tablets for
seven days. Mr. Early was given a three-day starter pack of
Amoxicillin and told to follow up with dental on Monday. The
medical record regarding this encounter was entered by RN
Pointer many days later on May 14, 2015. After Mr.
Early's three-day supply of medication ran out,
additional pills were not provided.
the failure to provide additional medication after the
starter pack was depleted was not an isolated event. Dr.
Donald L. Ross (“Ross”), the Regional Chief
Dentist, suggested that if inmates seeking dental care are
seen during the off-shift, that Dr. Shepherd or Dr. Cortes
should be the ones selected for co-sign or review. He stated
this would ensure that the dentist is aware of the case and
medications can be extended or continued if necessary. He
suggested such a change would provide clearer documentation
and promote continuity of care. Dkt 128-14 at p. 2-3
(September 28, 2015, email).
Tuesday, May 5, 2015, Mr. Early visited the dental clinic.
This was 10 days after his April 25, 2015, sick call visit
regarding his complaints that his lower left molar, Tooth No.
19, was hurting. When Mr. Early first arrived for the
appointment, Dr. Shepherd confronted Mr. Early by placing two
grievances Mr. Early had filed on the table and stating that
Mr. Early was “showing his ass” by filing
grievances about his dental care.
Shepherd's direction, Angie Whitlock, a dental assistant,
took a periapical x-ray of the abscessed tooth, which is a
photographic image of the tooth itself. The x-ray showed that
Mr. Early had bone loss and a deep large filling on the
tooth. Mr. Early came into BOP custody with this pre-existing
filling on Tooth No. 19. When a filling on a tooth is
large-as Mr. Early's was- the tooth is more likely to
need removal because the more tooth structure that is
removed, the more likely the tooth will be lost in the long
term. The filling on Mr. Early's Tooth No. 19 was an
extremely large restoration that was sitting right on the
nerve of the tooth. When a filling is that close to the
nerve, the long-term chances of saving the tooth are very
small. Upon x-ray, Mr. Early had an abscess-or accumulation
of pus-at the bottom of his tooth. Antibiotics will not make
the abscess go way. However, the antibiotics reduce the
infection to alleviate the pain.
dental record reflects that Dr. Shepherd physically evaluated
Mr. Early's tooth, but he did not. According to Mr.
Early, Dr. Shepherd did not physically examine him before
deciding to pull the tooth and instead based his treatment
decision on solely the x-ray. Dr. Shepherd concluded that the
tooth was non-restorable and recommended an extraction. An
extraction treats an abscess by removing the source of the
infection, at which point the body destroys whatever
infection is left without the need of antibiotics.
Early inquired about the withholding of his Amoxicillin
prescriptions and asked Dr. Shepherd to at least examine his
tooth before deciding it must be removed. In response, Dr.
Shepherd got upset and stated:
[L]et me tell you something, I'm the clinic director, if
I don't want to treat you, I won't. And I [Mr. Early]
said, well, sir, I'm not going to allow you to pull my
tooth without an exam and without explaining to me why the
Amoxicillin was discontinued. He started literally yelling at
me, shut up, sit down. I said okay. So I sat down, and he
went and got Mr. McCoy.
Dkt 128-2 (Early Dep., 18:22-20:7). The dental orderly, who
witnessed the incident, confirms this version of events:
Shepherd began screaming at Early, telling him he was not the
Dentist and words to the effect that he did not have to even
treat Early if he did not want to . . . Shepherd became
louder and louder, yelling at Early to shut up, stay seated,
and that he was not getting treated.
Dkt 128-10 (Calabrese Aff., ¶¶ 35-40).
Rhoads also witnessed this exchange. Mr. Early then met with
Mr. McCoy, who had Mr. Early sign a refusal of treatment.
“Objective” assessment in Dr. Shepherd's
administrative notes from this appointment, Dr. Shepherd
Patient points to #19 which has a [sic] overrestored large DO
alloy. Class I mobility. No swelling noted. Positive to
percussion. X-ray shows defective restoration with periapical
changes. Tooth is non restorable. Patient does not want
extraction done until put on antibiotics. Patient told
antibiotics not warranted at this time. Patient trying to
dictate treatment. Wants ...