# DAVIS v. KRUEGER

> District Court, S.D. Indiana · November 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10167169

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** November 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10167169

## How later opinions describe it (automated extraction)

- noting recognition of Bivens claims for Eighth Amendment violations

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

LEN DAVIS, )
)
Plaintiff, )
)
v. ) No. 2:17-cv-00467-JPH-DLP
)
CHARLES A. DANIELS Former Warden )
USP Terre Haute, )
DANIEL RUPSKA Health Director, USP )
Terre Haute, )
DOUG SHEPHERD Chief Dental Officer, )
USP Terre Haute, )
)
Defendants. )
)
)
UNITED STATES OF AMERICA, )
)
Interested Party. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Len Davis, an inmate in the Federal Bureau of Prisons ("BOP"),
complained of severe tooth pain for nearly three months before having his tooth
extracted. Dkt. 1 at 1. Mr. Davis argues that Defendants provided
unconstitutionally deficient medical care. Id. Defendants have filed a motion
for summary judgment. Dkt. [89]. For the reasons below, that motion is
GRANTED.
I.
Facts and Background
Because Defendants have moved for summary judgment under Rule
56(a), the Court views and recites the evidence "in the light most favorable to
the non-moving party and draw[s] all reasonable inferences in that party's
favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).
A. Mr. Davis' Dental Care

Mr. Davis is a federal inmate at the BOP's Federal Correctional Complex
("FCC") in Terre Haute, Indiana. Dkt. 97 at 6 ¶ 38. During the relevant period,
he resided in the "Special Confinement Unit," dkt. 89-18 at 10 (Davis Dep.
10:13–14), where inmates were locked in their cells "[u]p to 23 hours a day,"
dkt. 89–5 at 32 (Daniels Dep. 126:10–17).
Between December 5 and December 13, 2015, Mr. Davis submitted four
requests for care for severe dental pain. Dkt. 89-18 at 21–23 (Davis Dep.
21:19–23:1). After the fourth request, Nurse Susan Porter saw Mr. Davis

during sick call and made a note of her visit. Dkt. 89-10. Mr. Davis
complained of "Intense Pain in [his] gums . . . in the bottom left side of [his]
mouth." Id. at 1. Nurse Porter looked at "his left lower gum area" but "did not
see anything through the cell window." Id. Mr. Davis declined ibuprofen and
asked for antibiotics and "to be prescribed pain medication immediately"
because he had already tried Aleve, ibuprofen, and Sensodyne toothpaste. Id.
Mr. Davis said that nothing had alleviated the "intense" pain and that he
hadn't "slept in 24 hours." Id. Nurse Porter noted that she planned to speak to

Dr. Douglas Shepherd, FCC Terre Haute's Chief Dental Officer, "in regard to
dental list and inmate requests" and would "forward this note to Dr. Shepherd
as well." Id.
On December 13, Mr. Davis emailed Andrew Rupska, the Health Services
Administrator at FCC Terre Haute, explaining that he felt severe pain in his
gums on the bottom left side of his mouth under two filled teeth. Dkt. 89-3.

He asked to see a dentist immediately. Id. The next morning, on December 14,
Mr. Rupska responded that he had forwarded Mr. Davis' request to the dental
department. Id. That same day, Mr. Davis submitted his fifth request,
repeating his symptoms, self-diagnosing his ailment as "infected pulp under
tooth," and asking for prescriptions and to see a doctor. Dkt. 97-4 at 1–2; dkt.
89-18 at 24 (Davis Dep. 24:2–4). Mr. Davis also stated that he understood
BOP policies to require "prompt attention" for "emergencies of a medical
nature." Dkt. 97-4 at 2.

On December 16, 2015, Dr. Shepherd wrote Mr. Davis a letter informing
him that his name was on the waiting list:
Per the triage nurse, you had no visible swelling or drainage
therefore, you[r] condition is not considered life threatening. Due to
your condition not being life threatening, you are not an urgent
condition. You will be seen in order of your complaint. When your
name reaches the top of the waiting list you will be seen to evaluate
your needs. You can continue to take over the counter medications
for pain. I will write you a prescription for antibiotics to counter an
underlying problem that is not visible with obvious swelling and
drainage.

Dkt. 89-11. Dr. Shepherd then prescribed Mr. Davis a round of penicillin for
"[d]isease of hard tissues of teeth, other" and noted that "[p]atient has several
complaints of gums and teeth hurting." Dkt. 89-12. He also noted that
"[t]riage nurses have found no swelling or drainage with patient[']s complaint.
Rx will be written to eliminate any unseen possible infection, if present.
Patient will be seen in order of complaint." Id.
That same day, Mr. Davis stopped Mr. Rupska as he walked by his cell

door to discuss Dr. Shepherd's response to his BP-8. Dkt. 89-18 at 35–36
(Davis Dep. 35:19–36:8). Mr. Rupska read Dr. Shepherd's response and said
that he "agree[d] with it." Id. at 36 (36:9). He added, "if [Mr. Davis] were on the
street, no other dentist would place [him] ahead of any other patients
regardless of [his] pain." Id. (36:9–13). Mr. Rupska also expressed frustration
that "Dr. Shepherd prescribed medication to [Mr. Davis] without ever seeing
[him]." Id. (36:14–17). But Dr. Shepherd "routinely" prescribed antibiotics
without seeing patients. Dkt. 89-8 at 74 (Shepherd Dep. 74:3–10).

Two days later, on December 18, 2015, Mr. Davis filed a request for
administrative review:
Since 12-3-15 I've suffered with severe pain in a "pulp" under lower
back teeth. From 12-12-15 thru 12-13-15 I got 1 hour of sleep in a
39 hour period. I stood on my feet 26 hours with one hour of sleep.
Pain increased exponentially when I attempted to sit or lay down.
Commissary's 'Aleve', 'Ibuprofen', and Sensodyne toothpaste was
ineffective. 'Medical' refused to give me anything for pain and chief
dental officer 'Shepherd' refused to see me as a 'emergency dental
patient.' His 'litmus test' for 'emergency dental treatment' is: "life
threatening condition." This violates B.O.P. Policy 6400.02 (Dental
Services) D.(1). Also it violates 8th Amendment. . . . I'm requesting
to be given proper effective pain medication until I can be seen by a
dentist. I also request that B.O.P. Policy be adjusted to reflect that
proper attention should be given to prisoners by a doctor who can
properly prescribe pain medication.

Dkt. 89-6 (emphasis in original). Under BOP Policy 6400.02(8)(d)(1), 24-hour
emergency dental care "will be available to all inmates," including "treatment
for relief of severe dental pain" and "acute infections." Dkt. 97-1 at 10–11.
On January 7, 2016, Dr. Shepherd examined Mr. Davis, noting a
"Toothache" as Mr. Davis' "Chief Complaint." Dkt. 89-13 at 1. Mr. Davis
complained about pain in the gum behind tooth #18, a lower-left molar. Id.;

dkt. 89-9 at 2 (Shepherd Decl. ¶ 11). Dr. Shepherd took "[x]-rays of the area,
which revealed . . . plaque and bone loss between the roots." Dkt. 89-9 at 2
(Shepherd Decl. ¶ 11). Mr. Davis had a painful reaction to Dr. Shepherd
tapping on the tooth, "an indication that he ha[d] an abscess." Dkt. 89-8 at
83–84 (83:20–84:2). Dr. Shepherd also observed bleeding after probing tooth
#18. Id. at 84 (84:3–5). In addition, tooth #17 was "impacted," meaning "it was
way below the gum and the bone," and Dr. Shepherd could not "feel the tooth
with [his] probe." Id. at 84 (84:5–19).

Dr. Shepherd concluded that Mr. Davis had chronic gingivitis induced by
plaque. Id. at 85 (85:8–12); dkt. 89-13 at 1. Dr. Shepherd then placed a
resin/glass ionomer restoration material on the tooth, dkt. 89-13 at 2,
believing it could "treat the tooth and hopefully restore it," dkt. 89-9 at 2
(Shepherd Decl. ¶ 12). Dr. Shepherd instructed Mr. Davis on proper flossing
techniques and prescribed a five-day course of penicillin for gingivitis and
inflammation of the gums. Dkt. 89-8 at 85 (Shepherd Dep. 85:18–25); dkt. 89-
13 at 1–2. Dr. Shepherd also told Mr. Davis that his gums were infected, he

had a broken tooth, and he was experiencing an abscess tooth. Dkt. 89-18 at
26 (Davis Dep. 26:1–6). Mr. Davis "started flossing for the next ten days" but
still experienced pain. Id. at 26–27 (26:23–27:5).
On January 18, 2016, Mr. Davis submitted another sick call request. Id.
at 28 (28:1–4). And on January 21, Warden Charles Daniels denied Mr. Davis'
December 18 request for administrative review:

A review of your medical record reveals you submitted a dental sick
call request on December 5, 2015, and are currently waiting for an
appointment to see the dentist to evaluate your complaint. The
dentist processes non-emergent complaints in the order they are
received. Per the triage nurse, you have no visible swelling or issues
which are considered emergent. Only life threatening issues are
considered urgent to the point of being seen before other complaints.
Your complaint and symptoms are not life threatening and,
therefore, routine in nature. The dentist did prescribe you an
antibiotic on December 16, 2015, for any possible underlying
infection. You state you already have pain medication, though you
claim it does not eliminate the pain. The dental department will not
prescribe you a stronger pain medication for this type of complaint.
You can purchase over the counter medications through
commissary if needed for your pain. If your condition worsens,
please report to Dental sick-call for reevaluation.

Dkt. 89-7.
On February 10, 2016, Mr. Davis requested an update from Dr.
Shepherd, dkt. 97-2; on February 18, a nurse observed swelling, dkt. 89-15;
and on February 22, Dr. Shepherd prescribed a new course of antibiotics
without examining Mr. Davis, dkt. 89-16. On February 25, 2016, Dr.
Shepherd performed a dental exam. Dkt. 89-17. Dr. Shepherd observed that
tooth #18 was loose, bleeding, and positive to percussion, with bone loss
between the roots and a possible abscess or infection. Id.; dkt. 89-8 at 79, 93–
94 (Shepherd Dep. 79:1–11, 93:2–94:15); dkt. 97-3. Dr. Shepherd extracted
tooth #18 and prescribed Mr. Davis ibuprofen. Dkt. 89-17 at 2.
B. Procedural History
In October 2017, Mr. Davis sued several defendants for damages and
declaratory relief, asserting Bivens claims for failure to provide adequate

medical treatment. See dkt. 1 at 1, 10; see Hernandez v. Mesa, 140 S. Ct. 735,
741 (2020) (noting recognition of Bivens claims for Eighth Amendment
violations). Some defendants have been dismissed, dkt. 38, dkt. 39; Dr.
Shepherd, Andrew Rupska, and Charles Daniels remain.
C. Defendants
1. Douglas Shepherd
From 2007 to 2019, Dr. Douglas Shepherd served with the United States
Public Health Service ("PHS") as FCC Terre Haute's Chief Dental Officer. Dkt.

89-9 at 1 (Shepherd Decl. (¶¶ 2–3). He oversaw inmate dental care, id. at 1
(Shepherd Decl. ¶ 6), and—during the relevant period—was FCC Terre Haute's
only dentist, dkt. 89-8 at 33–34 (Shepherd Dep. 33:21–34:4); dkt. 89-18 at 39
(Davis Dep. 39:6–13). As a result, Dr. Shepherd had sole responsibility for
dental care for all 3,600 inmates at FCC Terre Haute. Dkt. 89-8 at 34
(Shepherd Dep. 34:3–6).
Dr. Shepherd scheduled appointments and maintained the dental-care
waitlist himself. Id. at 24, 29, 33 (Shepherd Dep. 24:21–23, 29:12–17, 33:2–

10). If an inmate requested to see him, then "the person [wa]s going to be
seen." Id. at 24, 29 (24:21–23, 29:12–17). Unless a complaint was "life-
threatening," it was "taken in order of . . . complaint." Id. at 30, 31–32 (30:1–7,
31:20–32:1). According to Dr. Shepherd, because "there is no way to assess
dental pain," he placed all complaints based solely on pain on a wait list. Id. at
31 (31:11–32:14).
2. Andrew Rupska

Mr. Rupska served as Health Services Administrator at FCC Terre Haute
from April 7, 2013 through November 26, 2017. Dkt. 89-1 at 1 (Rupska Decl.
¶ 2). He directed the administration of the Health Services Department, id. at 2
(¶ 5), and approved BOP policies and procedures, dkt. 89-2 at 14, 15–16
(Rupska Dep. 14:15–19, 15:2–16:4). Before approving a dental policy, Mr.
Rupska consulted the Clinical Director, the Chief Dental Officer, the Associate
Warden over Health Services, and usually the Warden. Id. at 16–17 (16:8–
17:1).

Mr. Rupska is a registered nurse, id. at 9 (Rupska Dep. 9:1–15), but as
Health Services Administrator, he "did not provide direct medical or dental care
to inmates unless a medical emergency arose," dkt. 89-1 at 2 (Rupska Decl.
¶ 5). He assessed whether employees followed policies and procedures in the
prison's medical and dental care. Dkt. 89-2 at 9, 23 (Rupska Dep. 9:21–23,
23:8–16). If Mr. Rupska determined that an employee did not follow a prison
policy, Mr. Rupska could intervene and "take it to the next step." Id. at 36
(36:2–5). Mr. Rupska also processed administrative grievances filed by inmates

about their medical care. Dkt. 89-1 at 2 (Rupska Decl. ¶ 8). If a grievance
involved a dental issue, he usually instructed his assistant to send the
complaint to Dr. Shepherd to investigate and respond. Id.; dkt. 89-2 at 25–27
(Rupska Dep. 25:23–27:5).
3. Charles Daniels
Charles Daniels served as Warden at FCC Terre Haute from February 22,
2015 until December 31, 2016. Dkt. 89-4 at 1 (Daniels Decl. ¶ 1). In this role,

he "did not treat patients or participate in clinical medical or dental decisions."
Id. at 1 (¶ 4). Mr. Daniels had no qualifications to render or decide dental
treatment, did not possess prescriptive privileges, and did not participate in
scheduling inmate dental treatment. Id. at 1–2 (¶ 4). But as Warden, he "had
final authority for administrative decisions" and "was responsible" for ensuring
that medical diagnoses "were consistent with law, statute," and prison policy.
Dkt. 89-5 at 23 (Daniels Dep. 90:21–94:8). Like all employees, he had an
obligation to abide by and implement BOP policies. Id. at 24 (95:13–16).

II.
Applicable Law
Summary judgment shall be granted "if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party must
inform the court "of the basis for its motion" and specify evidence
demonstrating "the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must "go beyond the pleadings" and identify
"specific facts showing that there is a genuine issue for trial." Id. at 324.
In ruling on a motion for summary judgment, the Court views the
evidence "in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party's favor." Zerante, 555 F.3d at 584 (citation
omitted).
III.
Analysis
"[P]rison officials and medical staff violate the Eighth Amendment's
prohibition on cruel and unusual punishment when they act with deliberate
indifference to a prisoner's serious medical needs." Rasho v. Elyea, 856 F.3d
469, 475 (7th Cir. 2017) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To

defeat summary judgment on such a claim, a plaintiff must satisfy both an
objective and a subjective element. Id. "He must first present evidence
supporting the conclusion that he had an objectively serious medical need."
King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012). He must also
demonstrate a genuine issue of fact on the subjective question of whether the
doctor and prison officials "were aware of this serious medical need and were
deliberately indifferent to it." Id.
For summary-judgment purposes, Defendants do not dispute that Mr.

Davis' severe tooth pain constitutes an objectively serious medical condition.
See dkt. 90; Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) ("Tooth decay
can constitute an objectively serious medical condition because of pain and the
risk of infection."). The only question therefore is whether a reasonable jury
could find that each Defendant was deliberately indifferent to his condition. To
establish this subjective element, a plaintiff must show more than negligence—
"something akin to recklessness." Giles v. Godinez, 914 F.3d 1040, 1049 (7th
Cir.), cert. denied, 140 S. Ct. 50 (2019).
A. Dr. Shepherd

Mr. Davis alleges that Dr. Shepherd acted with deliberate indifference by
failing to: (1) prioritize his complaints, (2) follow BOP policy, (3) develop pain
assessment criteria, (4) treat his pain and infection, and (5) timely respond to
his requests for treatment. Dkt. 97 at 4, 12 (¶¶ 15–17, 85–91). Dr. Shepherd
argues that he is "absolutely immune from liability" because of his position as
a commissioned officer in PHS during the relevant period. Dkt. 90 at 16. Mr.
Davis responds that Dr. Shepherd is estopped from asserting immunity. Dkt.
97 at 22.

1. Estoppel
Mr. Davis argues that Dr. Shepherd should be "equitably estopped from
evading liability by claiming immunity" because Dr. Shepherd wrote a message
to him on BOP letterhead and three court filings represented Dr. Shepherd as a
current or former BOP employee. Id. at 5 ¶ 31, 6 ¶ 33–35 (referencing dkt. 9;
dkt. 18; dkt. 21), 22. Mr. Davis argues that, for these reasons, it took him over
a year to learn that PHS, and not BOP, employed Dr. Shepherd as a dentist.
Dkt. 70 at 2 ¶ 7.

However, Mr. Davis cites no authority supporting his call for estoppel.
Moreover, the United States submitted the cited court filings before Dr.
Shepherd appeared in the case. See dkt. 30 (Notice of Appearance). Indeed, on
the day his attorney filed her appearance, Dr. Shepherd cured any
misrepresentations by raising absolute immunity as an affirmative defense in
his answer, dkt. 31 at 8, and in the tendered case management plan, dkt. 34 at
2. Estoppel therefore does not apply.

2. FTCA Immunity
The Federal Torts Claims Act ("FTCA") provides the "exclusive" remedy for
personal injury claims relating to medical or dental functions against "any
commissioned officer or employee of the [PHS] while acting within the scope of
his office or employment." 42 U.S.C. § 233(a); see Hui v. Castaneda, 559 U.S.
799, 812 (2010). Section 233(a) therefore "precludes Bivens actions against
individual PHS officers or employees for harms arising out of conduct described
in that section." Hui, 559 U.S. at 812.

Here, Dr. Shephard (1) was a "commissioned officer or employee of the
Public Health Service" and (2) acted "within the scope of his office or
employment." 42 U.S.C. § 233(a); see Early v. Shepherd, No. 2:16-cv-00085-
JMS-MJD, 2017 WL 4650873, at *2 (S.D. Ind. Oct. 17, 2017) (employing the
two-prong approach). First, Dr. Shepherd was a commissioned Captain with
PHS when he treated Mr. Davis at BOP. Dkt. 89-9 at 1 (Shepherd Decl. ¶ 2);
dkt. 89-8 at 9, 10–11 (Shepherd Dep. 9:1–6, 10:16–11:15). Mr. Davis argues
that a triable issue of fact exists as to Dr. Shepherd's employment status based

solely on the letterhead on his December 15, 2015 memo to Mr. Davis —which
said, "U.S. Department of Justice, Federal Bureau of Prisons." See dkt. 97 at 5
¶ 31; dkt. 89-11. But this letterhead does not contradict Dr. Shepherd's sworn
declaration and deposition testimony that he "was detailed to" FCC Terre Haute
as a "commissioned . . . Captain with the United States Public Health Service."
Dkt. 89-9 at 1 (Shepherd Decl. ¶ 2); dkt. 89-8 at 9, 10–11 (Shepherd Dep. 9:1–
6, 10:16–11:15).

Second, Mr. Davis does not dispute that his allegations arise out of Dr.
Shepherd's employment as a dentist. See dkt. 97 at 4 ¶¶ 15–17, 12 ¶¶ 85–91.
Therefore, Dr. Shepherd is entitled to absolute immunity. See Hui, 559 U.S. at
812.
B. Andrew Rupska
Mr. Davis alleges that Mr. Rupska acted with deliberate indifference by
failing to exercise his authority as Health Services Administrator to implement
and supervise established dental policies when addressing Mr. Davis'

complaints. Dkt. 97 at 4–7, 18–19 (¶¶ 19–21, 26, 32, 46–47, 50). Mr. Rupska
argues that he's entitled to summary judgment because he "cannot be held
liable under Bivens" since he "did not directly participate in providing medical
care to [Mr.] Davis." Dkt. 90 at 13. Mr. Davis responds that, as Dr. Shepherd's
supervisor, Mr. Rupska received adequate notice to alert him to an excessive
risk of Dr. Shepherd's alleged deliberate indifference to Mr. Davis' dental needs.
Dkt. 97 at 19.1
Although Mr. Rupska is a nurse, Mr. Davis seeks to hold Mr. Rupska

accountable only in his capacity as Health Services Administrator. See id. at 4,
5, 6, 7, 18–19 (¶¶ 19–21, 26, 32, 46–47, 50); see Rasho, 856 F.3d at 479
("While [defendants] were themselves medical professionals who might

1 The Court does not decide whether Dr. Shepherd was deliberately indifferent.
ordinarily be held to a different standard than a non-medical prison official, in
this case [plaintiff] seeks to hold [defendants] accountable as prison
administrators and policymakers, not treaters."). And non-treating prison

"officials may reasonably defer to the judgment of medical professionals
regarding inmate treatment." Giles, 914 F.3d at 1049. "The only exception to
this rule" is if "they have a reason to believe (or actual knowledge) that prison
doctors or their assistants are mistreating (or not treating) a prisoner." King,
680 F.3d at 1018.
Here, no designated evidence suggests that Mr. Rupska knew or had
reason to believe that Dr. Shepherd was "mistreating (or not treating)" Mr.
Davis. Mr. Rupska received Mr. Davis' email about his dental pain on

December 13, dkt. 89-3, and he responded the next morning, saying that he
forwarded Mr. Davis' request to the dental department, id.; dkt. 89-2 at 77
(Rupska Dep. 77:3–6).
On December 16, Mr. Rupska read Dr. Shepherd's response to Mr.
Davis, which said that because Mr. Davis did not suffer from "an urgent
condition," Dr. Shepherd placed him on a wait list and prescribed him an
antibiotic without seeing him. Dkt. 89-11; dkt. 89-12. After reading this, Mr.
Rupska said that he "agree[d] with it" and that "if [Mr. Davis] were on the

street, no other dentist would place [Mr. Davis] ahead of any other patients
regardless of [his] pain." Dkt. 89-18 at 35–36 (Davis Dep. at 35:19–36:13).
This does not show that Mr. Rupska knew or should have known about any
mistreatment of Mr. Davis. Instead, it shows that that Mr. Rupska knew that
Dr. Shepherd was treating Mr. Davis with antibiotics. Cf. King, 680 F.3d at
1018.
Mr. Davis nevertheless contends that Mr. Rupska, "as a supervisor," had

reason to know that Dr. Shepherd was not treating Mr. Davis properly. Dkt. 97
at 19. The parties dispute the nature of Mr. Rupska's supervisory role over Dr.
Shepherd, id. at 4 ¶ 19; dkt. 101 at 5, but even if Mr. Rupska had supervised
Dr. Shepherd clinically, he could not be held vicariously liable for the acts of a
subordinate, see Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) ("In a . . . Bivens
action—where masters do not answer for the torts of their servants—the term
'supervisory liability' is a misnomer."). Instead, Mr. Davis must show that Mr.
Rupska "knew of risks with sufficient specificity to allow an inference that

inaction is designed to produce or allow harm." Vance v. Rumsfeld, 701 F.3d
193, 204 (7th Cir. 2012) (en banc) (citing Farmer v. Brennan, 511 U.S. 825
(1994)).
Here, Mr. Rupska read Dr. Shepherd's December 16, 2015 email
response to Mr. Davis. Dkt. 89-18 at 35–36 (Davis Dep. 35:19–36:9). But
nothing in Dr. Shepherd's response email revealed deliberate indifference. See
dkt. 89-11. Dr. Shepherd's response email noted that a nurse triaged him and
did not observe "visible swelling or drainage," so Mr. Davis' "condition [wa]s not

considered life threatening." Id. It also informed Mr. Davis that he had been
placed on the waiting list and would receive "a prescription for antibiotics to
counter any underlying problem . . . not visible with obvious swelling and
drainage." Id. None of this qualifies as objective evidence of mistreatment.
Additionally, while Mr. Rupska had experience dealing with dental emergencies
as a nurse, he was not a dentist and thus had little justification for second-
guessing Dr. Shepherd's dental treatments. Dkt. 89-2 at 12, 23 (Rupska Dep.

12:6–18, 23:2–7). Accordingly, no evidence suggests that Mr. Rupska was
aware of any mistreatment of Mr. Davis because of his supervisory position.
Finally, Mr. Davis seeks to hold Mr. Rupska accountable because he
allegedly misinterpreted BOP Policy 6400.02. Dkt. 97 at 19. Under that policy,
all inmates should have access to 24-hour emergency dental care, which
includes "treatment for relief of severe dental pain" and "acute infections." Dkt.
97-1 at 10–11. But even if Mr. Rupska incorrectly interpreted and applied FCC
Terre Haute's dental policy, "a violation of [a] guideline or policy is not

sufficient to demonstrate deliberate indifference because Bivens claims
'protect[] against constitutional violations, not violations of departmental
regulation and practices.'" Collier v. Caraway, No. 2:14-CV-00365-JMS-MJD,
2017 WL 6316312, at *11 n.4 (S.D. Ind. Dec. 11, 2017) (quoting Estate of
Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir. 2017)). The issue remains
whether Mr. Rupska knew or should have known that Dr. Shepherd mistreated
Mr. Davis' tooth pain. See King, 680 F.3d at 1018. Mr. Davis has designated
no evidence showing a triable question of fact on that issue, so Mr. Rupska is

entitled to summary judgment.2

2 Because Mr. Rupska did not violate Mr. Davis' constitutional rights, the Court does not
consider Mr. Rupska's qualified immunity defense. See Mucha v. Vill. of Oak Brook, 650 F.3d
1053, 1057–58 (7th Cir. 2011).
C. Charles Daniels
Warden Daniels moved for summary judgment, arguing that he had no
personal involvement with Mr. Davis' dental care and treatment and did not act

with deliberate indifference toward Mr. Davis. Dkt. 90 at 11. Mr. Davis
contends that Warden Daniels "allowed, knew of or consented to Dr.
Shepherd's conduct" and misapplied BOP policy. Dkt. 97 at 15.
As discussed above, "non-medical officials may reasonably defer to the
judgment of medical professionals regarding inmate treatment," Giles, 914
F.3d at 1049, unless "they have a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner,"
King, 680 F.3d at 1018. None of Mr. Davis' designated evidence suggests that

Warden Daniels knew or had reason to believe that Dr. Shepherd mistreated or
failed to treat Mr. Davis. Warden Daniels' only personal involvement with this
case was when he denied Mr. Davis' request for administrative review. Dkt. 89-
7. His response to that request stated that "only life[-]threatening issues are
considered urgent to the point of being seen before other complaints" and that
Mr. Davis' symptoms were "routine in nature." Id. He also noted that the
dentist would "not prescribe [Mr. Davis] a stronger pain medication for this
type of complaint," described Dr. Shepherd's antibiotic prescriptions for Mr.

Davis, drew attention to the availability of over-the-counter pain medication,
and acknowledged the possibility of "re-evaluation" if his condition worsened.
Id. The evidence thus shows that Warden Daniels considered Mr. Davis'
condition and the treatment he received for it and did not know (or have reason
to believe) that Mr. Davis suffered from any mistreatment.
Still, Mr. Davis contends that Warden Daniels had notice of his request
for pain medication and "actively and affirmatively refused the complaint by
misconstruing the policy which he was responsible to interpret and
administer." Dkt. 97 at 17. But again, a defendant's breach of a prison policy
alone does not establisha constitutional violation. See Collier, No. 2:14-CV-
00365-JMS-MJD, 2017 WL 6316312, at*11n.4. And no evidence suggests
that Warden Daniels acted with the requisite degree of culpability (something
like recklessness). Giles, 914 F.3d at 1049. Warden Daniels is therefore
entitled to summary judgment. 3
IV.
Conclusion
Defendants’ motion for summary judgment, dkt. [89], is GRANTED.
Final judgment will issue in a separate entry.
SO ORDERED.
Date: 11/25/2020
Slam ruck lbanlove
James Patrick Hanlon
United States District Judge
Southern District of Indiana

3 The Court therefore does not consider whether Warden Daniels would be entitled to qualified
immunity. See Mucha, 650 F.3d at 1057-58.
18

Distribution:

Rachana Nagin Fischer
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
rachana.fischer@usdoj.gov

Justin R. Olson
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
justin.olson2@usdoj.gov

Sarah L. Ottinger
sottinger1010@gmail.com

Mark W. Sniderman
FINDLING PARK CONYERS WOODY & SNIDERMAN, PC
msniderman@findlingpark.com

Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
shelese.woods@usdoj.gov

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10167169. Public record. Not legal advice.