Early v. Shepherd
| Decision Date | 21 September 2018 |
| Docket Number | No. 2:16-cv-00085-JMS-MJD,2:16-cv-00085-JMS-MJD |
| Parties | LOUIS H. EARLY, Plaintiff, v. R. D. SHEPHERD, KIMBERLY RHOADS, CHRISTOPHER McCOY, UNITED STATES, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
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 theEighth 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.
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).
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 notnecessarily objectively true, but are construed in favor of Mr. Early for the purposes of resolving the pending motions for summary judgment.
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
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 instructedhim 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,...
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