Berry v. Peterman

Decision Date05 May 2010
Docket NumberNo. 09-3557.,09-3557.
Citation604 F.3d 435
PartiesAkida BERRY, Plaintiff-Appellant,v.Lt. George PETERMAN, R.N. Dave Reich, and Karen Butler, M.D., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit


Akida Berry (submitted), Sturtevant, WI, pro se.

Jodi Shields Yin (submitted), Axley Brynelson, Madison, WI, Maria K. Schneider (submitted), Gutglass, Erickson & Bonville, Milwaukee, WI, for Defendants-Appellees.

Before POSNER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

In the spring of 2008, plaintiff Akida Berry, an inmate in the Wisconsin Department of Corrections, was transferred temporarily to the Waushara County Jail because of overcrowding. Berry developed a serious toothache. The nurse and the doctor at the jail told him to take over-the-counter pain relievers, but they refused to refer him to a dentist. After about two months of serious pain, Berry was returned to a state facility where he promptly saw a dentist who performed a root canal the same day.

Berry, proceeding without a lawyer, sued the nurse, the doctor, and the jail administrator under 42 U.S.C. § 1983 for violating his Eighth Amendment right not to be subjected to cruel and unusual punishment. The defendants moved for summary judgment, arguing (1) that Berry failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a); (2) that Berry did not suffer a serious medical condition; and (3) that even if Berry did suffer a serious medical condition, he could not prove that any defendant acted with deliberate indifference toward that condition. The district court disagreed with the defendants on the first two points but agreed on the third and thus granted summary judgment to all three defendants. Berry v. Peterman, 2009 WL 3061977 (E.D.Wis. Sept.23, 2009).

We affirm in part and reverse in part. We agree with the district court that Berry has raised a genuine issue of material fact as to whether he exhausted his administrative remedies. We also agree that Berry suffered a serious medical condition and that the jail administrator is entitled to summary judgment because he was not deliberately indifferent to Berry's situation. As a layperson, the administrator was entitled to rely on the doctor's and nurse's advice regarding Berry's dental pain. But we conclude that Berry has offered sufficient evidence from which a reasonable jury could infer that the doctor and nurse acted with deliberate indifference toward his condition by persisting in an easy but ineffective course of treatment that subjected him to two months of serious but avoidable pain. We remand those claims for trial.

The Facts for Summary Judgment

This case comes before us on review of a grant of summary judgment, so we must give plaintiff Berry the benefit of all conflicts in the evidence and all reasonable and favorable inferences that might be drawn from the evidence. See Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.2006); Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1132 (7th Cir.1994). We do not vouch for the objective truth of every detail of the following account or take any position as to Berry's ultimate chance of success on the merits.

Berry was confined at the Waushara County Jail for approximately ten weeks-from March 28, 2008, through June 6, 2008-due to overcrowding at Wisconsin's Department of Corrections (“DOC”) facilities. Approximately one month before his transfer to Waushara, Berry had a DOC dental exam and was classified as “level 20,” meaning that he had routine or chronic dental needs and appeared unlikely to suffer an acute dental episode in the next six months.

During his detention at the Waushara County Jail, Berry filed numerous complaints concerning a steadily-worsening toothache. As early as April 3rd, Berry asked to see a dentist about an ailing tooth, claiming that air, water, and food all caused him pain. On April 11th, Berry filed a complaint stating that he did not believe he could wait until his transfer back to a DOC facility to see a dentist. He wrote that nothing was helping his tooth and that he was “having constant pains [and] headaches.” On April 13th, Berry again asked to see a dentist and complained that his tooth caused him continuous pain, headaches, and problems eating and sleeping. Again on April 18th, Berry complained that his tooth was causing him “a great deal of pain, and the worst headache I've ever had,” and that he was “unable to drink water at times, or brush my teeth due to the [pain].” On April 21st, Berry asked his nurse whether he could be sent to an off-site dentist to address his increasing pain, and he complained that his pain medication was ineffective. Berry complained again on April 24th that he was in such pain that he had to chew food on only one side of his mouth, and he noted that the pain had affected his sleeping and eating. On April 29th, Berry complained that he had not been able to brush his teeth because cold water caused him intolerable pain. A few days later, on May 1st, Berry complained to the jail administrator that he needed to see a dentist. Berry filed this lawsuit on May 14th. He complained to the jail administrator again on May 18th, stating that he needed to see a dentist and that his requests had been ignored.

Defendant Dave Reich-a registered nurse working for Health Professionals, Ltd., which contracted to provide medical and nursing services at the Waushara County Jail-received and replied to most of Berry's complaints. In response to Berry's numerous requests to see a dentist, Nurse Reich regularly responded that Waushara did not have a dentist on staff, that the Waushara County Jail's medical staff could treat only pain or infections, and that any dental work would be performed when Berry was transferred back to a DOC facility. At times Nurse Reich changed Berry's treatment or made suggestions to alleviate his pain, but he often merely reminded Berry that he had upcoming doctor appointments and that he was already receiving pain treatment (over-the-counter pain relievers). Other times, Nurse Reich simply replied that Berry's complaints had already been addressed.

Defendant Karen Butler, a physician also working for Health Professionals, examined Berry twice during his time at the Waushara County Jail. The record contains no evidence that Dr. Butler x-rayed Berry's teeth nor any details as to the methods used to examine Berry's teeth on either visit. On the limited record, it appears that Dr. Butler examined Berry only for infections or “dental emergencies.” During her examination on April 17, 2008, Dr. Butler noted no such infections or emergencies. On April 24th, Dr. Butler examined Berry again, this time noting a filling in tooth No. 19 but nothing that would cause pain. On this second visit, Berry insisted on seeing a dentist. Dr. Butler refused to make a referral, apparently because Berry presented with nothing more urgent than unexplained severe pain. Instead, she recommended a different pain medication. Dr. Butler persisted in this course of treatment even after Berry complained that those medications were ineffective. She never contacted a dentist to examine Berry's teeth.

Defendant George Peterman, Waushara County's jail administrator, had limited contact with Berry, who addressed only three complaints to him. Peterman replied to the second complaint and told Berry that he had raised his concerns with the medical staff. At Berry's request, Peterman later looked at Berry's teeth himself. Not surprisingly, he told Berry that he was not qualified to diagnose or treat dental problems. In response to the third complaint, in which Berry requested to see a dentist, Peterman forwarded Berry's request to the medical staff and notified the DOC of Berry's complaints.

Berry was transferred from the Waushara County Jail to a DOC facility on June 6th and had a “priority” appointment with a dentist on June 12th. According to his chart, Berry complained of pain in tooth No. 19 when he ate, when he brushed his teeth with cold water, and at night. The dentist's exam revealed that the pulp in tooth No. 19 was “clearly necrotic,” and the dentist performed a root canal or pulpotomy-surgical removal of a portion of the tooth's pulp (the connective tissue within, containing blood vessels and nerve tissue)-to salvage the remaining pulp. The dentist's notes indicate that if Berry's pain had not subsided after the root canal, the tooth would have to have been removed.

The district court granted summary judgment for all three defendants, concluding that Berry's dental pain was objectively serious but that none of the defendants had been deliberately indifferent to his condition. The court explained that Peterman and Nurse Reich properly deferred to the medical assessments made by Dr. Butler, who treated Berry's pain and examined him twice but saw no indication of infection or other dental emergency.


The Eighth Amendment to the United States Constitution protects prisoners from being subjected to cruel and unusual punishment. This amendment, incorporated to apply to the states pursuant to the Fourteenth Amendment, includes a right to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.2006). Pursuant to 42 U.S.C. § 1983, a prisoner may bring suit against any person who caused a violation of the prisoner's Eighth Amendment rights while acting under color of state law.

Berry asserts that his Eighth Amendment rights were violated because the defendants showed deliberate indifference to his repeated complaints of severe dental pain. To succeed on this claim, Berry must show (1) that he suffered from an objectively serious medical condition; and (2) that the individual defendant was deliberately indifferent to that condition. Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.2006), citing Zentmyer v....

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