Bownes v. Washington

Decision Date26 January 2023
Docket Number14-11691
PartiesMELVIN BOWNES, ANTHONY RICHARDSON, TIMOTHY BROWNELL, and JAMES GUNNELS, on behalf of themselves and those similarly situated, Plaintiffs, v. HEIDI WASHINGTON and JONG CHOI, Defendants.
CourtU.S. District Court — Eastern District of Michigan

Jonathan J.C. Grey Magistrate Judge



Plaintiffs Melvin Bownes, Anthony Richardson, James Gunnels, and Timothy Brownell each claim that they have not received adequate dental care while in the custody of the Michigan Department of Corrections. In fact, they maintain that Defendants MDOC Director Heidi Washington and MDOC Dental Director Jong Choi are deliberately indifferent to their serious dental problems. In Plaintiffs' view, this makes their incarceration the type of “cruel and unusual punishment[] prohibited by the Eighth Amendment of the U.S. Constitution.

And Plaintiffs say they are not unique in this regard. In fact each represents a class of hundreds if not thousands of inmates who have dental conditions like theirs and who believe they too are not being provided dental care that comports with the Constitution.

Primarily Plaintiffs challenge three aspects of MDOC's dental care. One is MDOC's policy that inmates are not eligible for routine dental care during their first two years of imprisonment. Plaintiffs also claim that MDOC neither adequately diagnoses nor adequately treats periodontal disease (gum disease). And, they say, MDOC does not adequately diagnose or treat caries (tooth decay). Due to these alleged deficiencies in dental care, Plaintiffs say that MDOC inmates will experience serious harm like an abscess or tooth loss or, at a minimum, they are at substantial risk of experiencing those serious harms.

As relief, Plaintiffs do not seek damages. Instead, they seek to improve the dental care provided by MDOC going forward. Or in legal terms, they seek a prospective injunction. They ask the Court to order MDOC to change its dental policies and practices so that they are no longer subject to cruel and unusual punishment.

After nine years of litigation, this case has finally reached the summary judgment stage. Both sides seek summary judgment in their favor. Defendants argue that no reasonable factfinder could conclude that they have violated the Eighth Amendment. While Defendants have made a strong case for summary judgment, and while certain claims will be dismissed, the Court will deny their motion for the most part. And Plaintiffs' motion for summary judgment will be denied. The Court justifies these rulings, in painstaking detail, below.

I. Background

Because this case centers on the two-year rule, the treatment and diagnosis of periodontal disease, and the treatment and diagnosis of caries, a thorough understanding of these concepts is necessary.

A. The Two-Year Rule

In 2013, about a year before this suit was filed, MDOC instituted a policy that made inmates ineligible for “routine” dental care until they completed two years of uninterrupted incarceration. See (ECF No. 363-10, PageID.9536); MDOC Dental Service Manual at 4 (eff. Dec. 19, 2017), available at (ECF No. 363-2, PageID.8858). Generally speaking, 15 to 20 percent of MDOC's inmates serve less than two years in prison or, at least, have a minimum sentence of two years or less. (See ECF No. 36310, PageID.9507; ECF No. 384, PageID.15415.) Before the two-year rule was implemented, there were almost 15,000 inmates on the waitlist for dental care. (ECF No. 363-10, PageID.9534.) Following implementation of the rule, the waitlist dropped to about 6,700 inmates. (ECF No. 363-10, PageID.9534.)

Inmates subject to the two-year rule are still entitled to “emergency” and “urgent” dental services; but they do not receive “routine” dental services. “Generally,” urgent needs include “facial swelling, oral facial trauma, uncontrolled postoperative bleeding, or significant pain or discomfort.” MDOC Policy Directive 04.06.150 ¶ D (eff. May 1, 2018) available at (ECF No. 363-3). In contrast, “routine” dental services include [l]imited diagnostic, restorative, periodontal, prosthetic, and non-urgent oral surgical procedures.” Id. at ¶ C. Dental care for urgent (and emergent) needs are provided to inmates at any point during their incarceration- even if they have served less than two years. Id. at ¶ L.

Three aspects of the two-year rule should be highlighted.

First, prisoners are required to serve two years before requesting a “complete” dental exam. When an inmate enters the correctional system, MDOC performs an “intake” or screening dental exam, which is not as thorough as a complete exam. At the intake exam, a dentist reviews the new inmate's dental-health history, completes a visual inspection for (among other things) periodontal disease and caries, and instructs on oral hygiene. Policy Directive 04.06.150 ¶ J. If the intake exam reveals an urgent dental need, the inmate is referred to MDOC's stabilization clinic where the urgent need can be addressed. Id. at ¶ K. In contrast, in a complete exam, dentists take more detailed “bitewing” x-rays and create a treatment plan. MDOC Dental Services Manual at 11 (eff. Dec. 19, 2017); (ECF No. 363-10, PageID.9446).

Although inmates become eligible for a complete exam after serving two years, they are not provided that exam at the two-year mark but are instead placed on a waitlist. Thus, about 50% of inmates do not receive their complete exam until after 28 months in prison and about 25% of inmates wait even longer for their complete exam, 34 months. (ECF No. 384, PageID.15446.) After the first complete exam, an inmate is eligible for one “periodic” exam each year. Dental Services Manual at 17.

Second, inmates are not eligible for a periodontitis treatment called “scaling and root planing” until they serve two years in prison. See Policy Directive 04.06.150 ¶ M.3; (ECF No. 363-10, PageID.9414-9415 (Choi discussing ¶ M.3)). If the intake exam reveals urgent periodontitis, the stabilization clinic will only provide a “debridement,” which is a different type of cleaning than a scaling and root planing. (See ECF No. 363-5, PageID.8988-8989, 9010-9011; ECF No. 374-7, PageID.12862.) During the two-year period, inmates can make an urgent care request and so it is possible that a dentist could prescribe a scaling and root planing in connection with that request. But neither party has indicated how often this occurs.

A third aspect of the two-year rule is particularly relevant to the pending motions: many (if not most) inmates will not receive fillings for their cavities until they serve two years in prison. See Policy Directive 04.06.150 ¶ M. According to Carla Maxwell, a dentist that conducts intake examinations and provides treatment at the stabilization clinic, if a cavity is too shallow to be urgent, a filling is not provided; and if the cavity is so deep that the tooth is not restorable, the tooth is extracted. (See ECF No. 363-5, PageID.9040, 9058.) But, says Maxwell, there are circumstances where, during the two-year period, the cavity is deep enough to be urgent, but not so deep to warrant extraction, and so a filling is provided. (ECF No. 363-5, PageID.9042, 9059; see also ECF No. 363-10, PageID.9340 (Choi describing when a filling would be provided at the stabilization clinic).)

B. Periodontal Disease
1. What is Periodontal Disease?

For purposes of this case, periodontal disease consists of periodontitis and gingivitis.

Basically, gingivitis causes inflammation of the gums. (See ECF No. 366-6, PageID.10833.) One way to diagnose gingivitis is to touch the gums with a dental probe; in patients with gingivitis, the gums will bleed. (ECF No. 374-8, PageID.12942; ECF No. 366-6, PageID.10791.) Gingivitis is reversible and painless. (ECF No. 384, PageID.15383, 15422-15423.) Treatments for gingivitis include good oral hygiene and a gingivitis-specific cleaning that removes calculus-essentially bacteria that has hardened itself-from above and below the gumline. (ECF No. 374-8, PageID.12943; ECF No. 366-2, PageID.9865-9866.)

Periodontitis is a disease that attacks the alveolar bone and periodontal ligament, which are structures that hold the tooth in place. (ECF No. 384, PageID.15380-15381.) This drawing shows a healthy alveolar bone, ligament, and tooth and those same structures attacked by periodontitis:

(Image Omitted)

(ECF No. 384, PageID.15381.) As periodontitis progresses, the ligament and bone are increasingly damaged. This results in a “pocket” or “loss of attachment” between the tooth's root and the gums. (See ECF No. 384, PageID.15381.) This loss of attachment distinguishes periodontitis from gingivitis. (ECF No. 374-8, PageID.12943.) These pockets permit harmful calculus to form on the tooth's root (the portion of the tooth below the normal gumline). (See ECF No. 366-3, PageID.9950; ECF No. 384, PageID.15426 n.197.) The damage caused to the alveolar ligament and bone by periodontitis is not reversible. (ECF No. 366-6, PageID.10830.)

Periodontitis is a stealthy disease: usually it is not painful until it reaches an advanced stage. (ECF No. 384, PageID.15420.) Thus, if a patient is not informed that she has periodontitis, she might not seek treatment for it until an abscess forms or her teeth have become loose. (ECF No. 384, PageID.15422-15423; ECF No. 366-3, PageID.9904.) At that point, the teeth are often not salvageable absent advanced surgical procedures. (ECF No. 384, PageID.15425 n.191.)

As a result of a “World Workshop” for periodontology in 2017, periodontitis is now categorized in three...

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