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Early v. Shepherd

United States District Court, S.D. Indiana, Terre Haute Division

September 21, 2018

LOUIS H. EARLY, Plaintiff,


          Hon. Jane Magnus-Stinson, Chief Judge.

         Plaintiff 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.[1] 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.[2]

         All 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.

         The 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.

         For the reasons explained below, the United States' motion for summary judgment, dkt [117], 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 [115], 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 [115], 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 [137], is denied.

         I. Standard of Review

         A 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).

         On 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).

         II. Material Facts

         Because 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.

         A. Dental Care at FCI Terre Haute

         Mr. Early has been incarcerated at the Federal Correctional Institution in Terre Haute, Indiana, (“FCI Terre Haute”) since November 2013.

         Dr. 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.

         Ms. 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.

         On 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.

         If 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.

         The 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.

         The 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.

         In 2014 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 antibiotics.[3]

         B. Early's Dental Care at FCI Terre Haute

         Mr. 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).

         Mr. 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 for follow-up.

         On 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.[4] 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).

         If Dr. 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.

         From April 27 to April 30, 2015, Mr. Early reported to the pharmacy to receive his Amoxicillin, but was repeatedly denied.

         There 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.

         A 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.

         On 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.[5]

         On May 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.

         Apparently, 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).

         On 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.

         At Dr. 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.

         The 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.

         Mr. 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).

         Ms. Rhoads also witnessed this exchange. Mr. Early then met with Mr. McCoy, who had Mr. Early sign a refusal of treatment.

         Under “Objective” assessment in Dr. Shepherd's administrative notes from this appointment, Dr. Shepherd wrote:

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 ...

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