Jones v. Rickman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

5:18-cv-00181-MR

GREGORY H. JONES, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

JEFFREY E. RICKMAN, et al., )

)

Defendants. )

________________________________ )

THIS MATTER comes before the Court on the following:

(1) Plaintiff’s Motion for Summary Judgment [Doc. 74];

(2) Defendants Belinda E. Abreu-Pena, James Clare,1 Jeffrey E.

Rickman, and Donna L. Woodruff’s Motion for Summary

Judgment [Doc. 80];

(3) Defendant FNU (Tim F.) Townsend’s2 Motion for Summary

Judgment [Doc. 88]; and

(4) Defendants Erik Hooks, Kenneth Lassiter, Dora Plummer, and

Paula Smith-Sawyer’s Motion for Summary Judgment [Doc. 91].

1 The Clerk will be instructed to correct the spelling of Defendant Claire to Clare in the

docket in this matter.

2 The Clerk will be instructed to substitute the true full name of Defendant FNU Townsend

to Tim F. Townsend in the docket in this matter.

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Gregory H. Jones (“Plaintiff”) is a North Carolina inmate

currently incarcerated at Pender Correctional Institution in Burgaw, North

Carolina. Plaintiff filed this action on November 13, 2018, pursuant to 42

U.S.C. § 1983, naming no less than twenty-three Defendants and alleging

various claims arising out of unrelated events occurring during his

incarceration at Alexander Correctional Institution (“Alexander”) and

Mountain View Correctional Institution (“Mountain View”). [Doc. 1]. On initial

review of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A, the

Court found that Plaintiff had asserted wholly unrelated claims against the

different Defendants and allowed Plaintiff 30 days to amend his Complaint

to comply with Rules 18 and 20 of the Federal Rules of Civil Procedure.

[Doc. 11 at 3-6].

Plaintiff timely filed a verified Amended Complaint, with numerous

exhibits, naming as Defendants Jeffrey E. Rickman, Tim F. Townsend, and

Belinda E. Abreu-Pena, all identified as dentists employed by the North

Carolina Department of Public Safety (NCDPS); and Defendant Erik Hooks,

identified as the Secretary of the NCDPS. [Doc. 16; see id. at 9, 63]. Plaintiff

claimed these Defendants violated his Eighth Amendment rights by their

deliberate indifference to Plaintiff’s serious medical needs. Specifically,

Plaintiff alleged that between December 2016 and November 2018, while

incarcerated at Mountain View and Alexander, he was denied necessary

dental care by Defendants Rickman, Townsend, and Abreu-Pena pursuant

to NCDPS policy, adopted by Defendant Hooks, which provides for long

outdated and inadequate medical care. [Doc. 16 at 15-16; Doc. 16-1 at 1-3].

Plaintiff also described conduct by “policymakers” Kenneth Lassiter,

Christopher Murray, Paula Smith, Dora Plummer, James Clare, and Donna

L. Woodruff, but Plaintiff failed to name them as Defendants in his Amended

Complaint. [See Doc. 16 at 2-3, 15].

The Court allowed Plaintiff’s claims again Defendants Rickman,

Townsend, Abreu-Pena, and Hooks to proceed on initial review and advised

Plaintiff that if he intended to name the “policymakers” as Defendants, then

he must file a motion to add them as Defendants. [Doc. 17]. Plaintiff

promptly moved to add Lassiter, Smith, Plummer, Clare, and Woodruff (but

not Murray) as Defendants in this matter. [Doc. 21]. The Court granted

Plaintiff’s motion [Doc. 22] and the matter proceeded against these

Defendants as well. Plaintiff seeks injunctive and monetary relief. [Doc. 16

at 5; Doc. 16-1 at 7-8].

On October 16, 2019, counsel from the North Carolina Prisoner Legal

Services (NCPLS) was appointed to assist Plaintiff in conducting discovery

in this matter. [Doc. 56]. NCPLS counsel filed a notice of appearance on

Plaintiff’s behalf shortly thereafter. [Doc. 57]. Less than two months later,

Plaintiff’s NCPLS counsel moved to withdraw as his attorney. [Doc. 67]. In

her motion, NCPLS counsel cited Plaintiff’s assertion that she “[did] not

represent [him],” that Plaintiff had claimed she had denied Plaintiff

assistance, and that Plaintiff had indicated that he would conduct his own

discovery. [Id.]. The Court granted NCPLS counsel’s motion [Doc. 70] and

Plaintiff again proceeded entirely pro se.

The parties have all moved for summary judgment.3 [Docs. 74, 80, 88,

91]. After all Defendants moved for summary judgment, the Court entered

an order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.

1975), advising Plaintiff of the requirements for filing a response to the

summary judgment motions and of the manner in which evidence could be

submitted to the Court. [Doc. 94]. The Plaintiff was specifically advised that

he “may not rely upon mere allegations or denials of allegations in his

pleadings to defeat a summary judgment motion.” [Id. at 2]. Rather, he must

3 Plaintiff’s motion for summary judgment is nothing more than another recitation of facts

Plaintiff contends support his claims against Defendants, together with citation to legal

authority primarily from other circuits. [See Doc. 74]. Plaintiff presents nothing by way of

affidavit or under penalty of perjury and no additional documents in support of his claims.

As such, the Court does not separately consider Plaintiff’s motion for summary judgment

and, instead, relies on Plaintiff’s verified Amended Complaint, including exhibits, in

determining whether summary judgment is appropriate for any party, as discussed more

fully below.

support his assertion that a fact is genuinely disputed by “citing to particular

parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” [Id. at 3 (citing Fed. R. Civ. P.

56(c)(1)(a)]. The Court further advised that, “[i]f Plaintiff has any evidence to

offer to show that there is a genuine issue for trial,” “he must now present it

to this Court in a form which would otherwise be admissible at trial, i.e., in

the form of affidavits or unsworn declarations.” [Id. at 2 (citing Fed. R. Civ.

P. 56(c)(4))]. Plaintiff timely responded to Defendants’ motions, although his

response included only ten handwritten pages of factual allegations that are

redundant of those in his Amended Complaint, which were not made by

affidavit or under penalty of perjury. [See Doc. 96].

This matter is now ripe for adjudication.

II. STANDARD OF REVIEW

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). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th

Cir. 1995). A verified complaint, like Plaintiff’s Amended Complaint,

however, “is the equivalent of an opposing affidavit for summary judgment

purposes, when the allegations contained therein are based on personal

knowledge.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. “‘Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct.

2658, 2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). “[I]n determining whether a prisoner has received adequate

medical treatment, the federal court is entitled to rely on the physician’s

affidavit and prison medical records kept in the ordinary course of operation.”

Stokes v. Hurdle, 393 F. Supp. 757, 762-63 (4th Cir. 1975), affirmed, 535

F.2d 1250 (4th Cir. 1976) (citations omitted). “In short, if it appears from the

record that the prison medical authorities have made a sincere and

reasonable effort to handle the prisoner’s medical problems, the

constitutional requirements have been met.” Id. at 763.

III. FACTUAL BACKGROUND

A. Plaintiff’s Allegations and Forecast of Evidence4

Plaintiff alleges that Defendants Rickman, Abreu-Pena, and Townsend

“refused to fill [his] upper canine tooth (#11) since Dec/2016 unless [he] let

them extract [his] 3 remaining upper teeth and wait 12-18 months for a top

denture.” [Doc. 16 at 12]. Plaintiff further complains that “[one] of the teeth

they want[ed] to pull is a good crown [he] paid for in 1975 before prison.”

[Id.]. Plaintiff alleges that these dentists’ “refusal to repair” Plaintiff’s tooth

for two and a half years “caused pieces to break off and it [to] abscess, so it

had to be pulled in May/2019.” [Id. at 13].

Plaintiff alleges that in December 2016 Dr. Townsend refused to fill or

repair Plaintiff’s “upper canine when the filling fell out” and would only

consider “pulling out all [Plaintiff’s] top teeth and requesting a full top

denture.” [Doc. 16-1 at 3]. Plaintiff further alleges that Dr. Townsend told

him that it would take approximately one year to get the full denture and that

4 Plaintiff’s allegations are taken from Plaintiff’s verified Amended Complaint and Exhibits

thereto. As noted, they are equivalent to an opposing affidavit for summary judgment

purposes. The exhibits to Plaintiff’s Amended Complaint include Plaintiff’s “Supporting

Affidavit,” certain Sick Call Appointment Requests, a letter written by Plaintiff to Defendant

Smith, grievance records related to Plaintiff’s dental care, a “grievance” sent directly to

Defendant Lassiter, an article from Prison Legal News magazine, and two miscellaneous

letters by Plaintiff. [See Doc. 16-1]. As such, Plaintiff’s allegations, as recited by the

Court here, will be considered relative to Defendants’ forecast of evidence, presented

below.

when Plaintiff asked Dr. Townsend how Plaintiff would chew with no top

teeth, Dr. Townsend responded, “You’ll figure something out.” [Id.].

Plaintiff further alleges that he was transferred to Alexander on June

19, 2018 and that his “[two] front teeth broke a few days later.” [Doc. 16-1 at

1]. Plaintiff alleges that he completed a Sick Call Appointment Request, but

he was denied dental treatment. [Id.]. Plaintiff alleges that he filed two more

requests for an appointment, but was “still ignored, so [he] filed a grievance.”

[Id.]. Plaintiff alleges that he then filed “an emergency sick call just to have

Dentist Abreu mail [his] denture to Raleigh for repair.” [Id.]. Plaintiff further

alleges that his partial plate broke four times in 2017 and once in 2018 and

that a full denture “would be made of the same breakable plastic.” [Id.].

Plaintiff alleges that he saw Dr. Rickman on August 2, 2018, that Dr.

Rickman “refused to fix the broken partial, [Plaintiff’s] upper canine, or

anything else” and “suggested extraction of all my top teeth, including a good

crown [Plaintiff] bought in 1975,” for a full upper denture, which Plaintiff

alleges “would take a year or more.” [Id.]. Plaintiff also alleges that Dr.

Rickman “denied [Plaintiff] treatment for a broken partial almost 3 months.”

[Id.]. Plaintiff claims that he “had to wait 2 more months, filing sick calls, a

grievance, and an emergency sick call just to have [his] partial sent to

Raleigh.” [Id. at 2].

Plaintiff alleges that Dr. Abreu-Pena “mailed [Plaintiff’s] partial in, but

refused to treat [his] dental problems.” [Id.]. Plaintiff further alleges that Dr.

Abreu-Pena told him that his partial denture was dated 2017, so Plaintiff may

have to wait five years from 2017 to have a new denture made. [Id.].

On March 19, 2018, Plaintiff wrote a letter to Defendant Paula Smith,

M.D., in her capacity as Medical Director, complaining about the dental care

he was receiving. [Id. at 15-22]. He wrote, “I only have 4 top teeth left. One

is a crown done in 1975 before my arrest. My partial plate attaches to it and

my canine which has a hole in it the dentist refuses to fill. He wants to pull

all my top teeth and have me wait about a year for an upper denture.” [Id. at

15]. Plaintiff further stated that he “[has] been in prison since 1975 and

denied treatment that would have saved my teeth…” [Id.]. Plaintiff then cited

extensively to various policies and case law he believed were being violated

and/or supported the treatment he was seeking. [Id. at 15-21]. Plaintiff

concluded his letter by asking whether he would need to file a lawsuit to get

“[his] teeth fixed.” [Id. at 21-22].

Defendant Donna Woodruff, Assistant Dental Director, responded to

Plaintiff’s letter on April 30, 2018. [Id. at 23]. In her response, Dr. Woodruff

stated, in part, as follows:

After reviewing [your] records and speaking with the

dental staff, I see where you have had dental

appointments to address concerns with your teeth on

February 21, 2018 and March 18, 2018. Your dental

condition has been explained to you and treatment

options offered. An upper denture is a reasonable

treatment option for you. NCDPS does not provide

routine crowns, bridges or implants. You are not in

minimum custody and do not qualify to be considered

for outside services at this time.

[Id. at 23]. Dr. Woodruff then advised Plaintiff, “[y]ou are receiving active

dental care. Please continue to follow-up with your unit dentist.” [Id.].

Plaintiff alleges that Defendant Lassiter, the NCDPS Director of

Prisons from May 2017 to September 2019, “has been in the prison system

for many years” and “could have changed[d] unconstitutional medical and

dental policies if he wanted to.” [Doc. 16 at 16]. On May 13, 2018,

presumably after having received Dr. Woodruff’s response, Plaintiff sent a

letter to Defendant Lassiter. Although this letter was written on a grievance

form and Plaintiff calls it a “grievance,” Plaintiff alleges that he sent it directly

to Defendant Lassiter. [Doc. 16-1 at 24-28; Doc. 16 at 22]. Further, there is

no forecast of evidence suggesting that it was filed as a grievance. In this

letter, Plaintiff again complains about his dental care and certain dental

policies. Plaintiff concluded his letter by stating, “Fix my teeth, or let me get

an outside dentist to do it.” [See Doc. 16-1 at 28]. Plaintiff alleges that

Defendant Lassiter “refused to answer” this letter, [Doc. 16 at 22], although

there is no forecast of evidence that Defendant Lassiter ever received the

letter. Plaintiff also alleges that he sent a “follow-up grievance” to Lassiter

about Lassiter’s refusal to answer.5 [Id. at 16]. Plaintiff contends that

Defendant Lassiter’s conduct constitutes deliberate indifference to prisoner

dental needs. [Id. at 17]. Plaintiff also asserts that Lassiter’s “policies

resulted in the loss of most of [Plaintiff’s] teeth since [Plaintiff] came to

prison.” [Doc. 16-1 at 4].

On September 7, 2018, Plaintiff filed a grievance, complaining that

“[his] 2 front teeth broke over a month ago” and “[he] filed 3 sick calls to

dental about it, but [he] get[s] no answer.” [Id. at 31]. Plaintiff appealed this

grievance to Step Three wherein it was concluded and Plaintiff was advised

as follows:

On this record, it appears that dental staff have seen

and treated this offender within the parameters of the

Health Care Policy. According to Dental, you were

seen in the dental clinic on 10/3/18 for a broken

upper partial. Doctor Abreu recommended to you to

have your remaining four maxillary teeth extracted so

that a full denture could be made. You refused the

recommendations for extractions and an upper

denture. You also refused to have an impression

made for a partial repair. The partial had to be sent

to the lab in broken pieces with no new impression to

help the lab repair it correctly. You appear to be

deliberately refusing to assist with ANY

5 It appears that Plaintiff is referring to a grievance he submitted on September 17, 2018

wherein he references a “grievance” he sent to Defendant Lassiter “several months ago

about getting [his] teeth fixed.” [Doc. 16-1 at 36]. This September 17, 2018 grievance

was rejected because Plaintiff had an active grievance already in process, [Id. at 38],

namely the September 7, 2018 grievance discussed below.

recommendation. Dental also notes that this is the

SIXTH repair of this partial.

The disagreement of the offender with that of trained

dental professionals does not render the

professionals’ judgment incompetent nor does it

signify any indifference to inmates’ care. Custody

officials must rely on the qualified judgment of

medical and dental professionals charged with

inmate healthcare. The offender is encouraged to

continue to submit sick calls and attend medical and

or dental appointments to inform staff of any ongoing

concerns or changes in his medical or dental

condition.

[Id. at 41].

On October 16, 2018, Plaintiff filed a ten-page grievance regarding his

dental care, which is largely in keeping with the allegations of his complaint

in this matter. [See id. at 42-51]. Plaintiff again appealed this grievance to

Step Three, where it was determined that “staff has taken appropriate action

in response to [Plaintiff’s] dental concerns.” [Id. at 55].

Plaintiff alleges that “N.C. prison dentistry is outdated as a matter of

policy, which of course is deliberate indifference,” and that “policy overrules

medical considerations.” [Id. at 13-14 (emphasis in original)]. Plaintiff also

alleges that “policymaking defendants deny root canals, caps or crowns,

bridges, and implants because of cost” and that such denial “is deliberate

indifference.” [Id. at 14-15]. Plaintiff specifically takes issue with Policy No.

TX V-6, Section II(C)(3)(b), which provides that new full or partial dentures

will be allowed only once during a five-year period, “except under extenuating

circumstances and with approval of the Dental Director.” [Doc. 16 at 25; Doc.

16-1 at 2]. Plaintiff, however, does not forecast evidence regarding how he

was adversely impacted by this policy, other than by his own decision to

refuse full upper dentures for fear of them breaking. [See id.]. Plaintiff also

takes issue with the policy that precludes him, as a medium custody prisoner,

from access to outside care providers at his own expense, calling this policy

“punishment.” [Doc. 16-1 at 4]. Plaintiff claims that, “if [he] could go to a

good dentist in Asheville, [he] could have [his] teeth restored with crowns,

bridges, and implants.” [Id. at 14].

Plaintiff alleges that Defendant Smith was the NCDPS Medical Director

and that, as Medical Director, she approved dental policies denying most

forms of dental treatment, and is, therefore, “clearly responsible” for them.

[Id. at 17]. Plaintiff also references the “long letter” he wrote to Dr. Smith in

March 2018 “citing and challenging policies.” [Id. at 18]. Plaintiff alleges that

Defendant Dora Plummer “may have replaced Paula Smith” as Medical

Director, but he makes no further allegations against Defendant Plummer.

[Id. at 6].

As to Defendant Clare, Plaintiff alleges that Dr. Clare was the NCDPS

Dental Director and that Dr. Clare “refused to solve [Plaintiff’s] problem due

to his deliberate indifference.” [Doc. 16 at 18]. Plaintiff alleges that pursuant

to policy, Dr. Clare is “responsible for his policies which [deny] all NC

prisoners caps or crowns, bridges, implants, and other ways to save or

replace teeth,” and that Dr. Clare is responsible for the alleged delay in

access to dental care in the prisons. [Id. at 19]. Plaintiff also purports to

“challenge all dental policies that restrict or deny any ‘community standard’

treatment available today in 2019 and the future.” [Id.].

As to Defendant Woodruff, Plaintiff alleges that she was the NCDPS

Assistant Dental Director and that she responded to Plaintiff’s March 2018

letter to Defendant Smith. [Id. at 20]. Plaintiff claims Dr. Woodruff “refused

to discuss anything in [his] letter” and “only sent [him] a form letter” indicating

that Plaintiff was receiving “active dental care” and advising Plaintiff to

“continue to follow-up with [his] unit dentist.” [Id.]. Finally, Plaintiff claims

that Dr. Woodruff “enforces policies that prevent dentists from saving or

replacing [his] teeth.” [Id.].

As to Defendant Hooks, Plaintiff alleges that, as Secretary of Public

Safety, pursuant to N.C. Gen. Stat. § 148-11, Hooks “is legally responsible

for all prison rules and policies by law, not by respondeat superior.” [Doc. 16

at 16]. Further, because Hooks “’adopted’ rules and policies in effect before

he took the job, he approves them.” [Id.]. Plaintiff, however, concedes that

Defendant Hooks did not “[have] actual knowledge of [Plaintiff’s] dental

problems.” [Id. at 20].

B. Defendants’ Forecast of Evidence

The evidentiary forecast before the Court demonstrates the absence

of a genuine issue of material fact on Plaintiff’s claims. Defendants’ forecast

consists of the Declarations of Defendants Abreu-Pena, Rickman, Clare,

Townsend, Smith, and Plummer; Plaintiff’s prison dental records from

November 10, 2015 through October 10, 2019; Plaintiff’s Sick Call

Appointment Requests from August 18, 2015 to September 24, 2019;6 and

certain prison dental policies.

1. Defendants Townsend, Rickman, and Abreu-Pena

Defendants’ evidence tends to show the following. Defendant

Townsend is a dentist who has been licensed to practice dentistry since

1978. [Doc. 90 at ¶ 2: Townsend Declaration]. Dr. Townsend began working

6 Plaintiff’s materials also included six purported Sick Call Appointment Requests. [See

Docs. 16-1 at 11, 13, 14, 35, 56, 58]. Two of these Requests [Docs. 16-1 at 13, 35] do

not appear anywhere in Plaintiff’s complete dental records for the relevant period, as

submitted by Defendant Clare [see Doc. 83-1 at 2-117], and none of these Requests

reflect having been filed or triaged. There is some question as to whether Plaintiff created

at least some of these Requests after the fact in an attempt to bolster his claims. [See

Doc. 90 at ¶¶ 21-23]. Complete versions of four of these Requests, which reflect having

been triaged and processed by prison staff, are included in Plaintiff’s dental records

submitted by Defendants Clare and Townsend. The remaining two Appointment

Requests submitted by Plaintiff, from February 15, 2017 and September 28, 2018, if valid,

simply reflect additional complaints by Plaintiff regarding his teeth and do not impact the

Court’s ruling in this case. [See Doc. 16-1 at 13, 35].

for the Dental Division of the NCDPS in September 2014 at Alexander. [Id.

at ¶ 3]. In January 2015, Dr. Townsend transferred to Mountain View. [Id.].

In Dr. Townsend’s 42-year dental career, he has never had a Board

complaint or lawsuit, except the pending action, and has never had his

license restricted, suspended, revoked or under any state of probation. [Id.

at ¶ 4]. All of Dr. Townsend’s treatment of Plaintiff occurred at Mountain

View. [Id. at ¶ 6]. Drs. Rickman and Abreu-Pena are also dentists employed

by the NCDPS. [Doc. 81 at ¶ 1: Abreu-Pena Declaration; Doc. 82 at ¶ 1:

Rickman Declaration]. Dr. Abreu-Pena provided dental treatment to Plaintiff

while he was housed at Alexander, [Doc. 81 at ¶ 3], while Dr. Rickman

provided care to Plaintiff at Mountain View and Alexander, [see Doc. 82 at

¶¶ 4, 9].

For an inmate to get a dental clinic appointment without a regularly

scheduled follow-up appointment, an inmate submits a Sick Call

Appointment Request (“Appointment Request”) describing his complaint.

[Doc. 90 at ¶ 7]. Each complaint is reviewed by a dental assistant who

schedules a time for the inmate to see a dentist, if appropriate. [Id.]. An

inmate is not seen by a dentist unless such an appointment is scheduled.

[Id.]. Further, usually only the issue in the referral is treated at that

appointment. [Id.]. Schedules are posted in advance and are readily

accessible to inmates. [Id.]. If an inmate fails to show up for an appointment,

it normally takes three to six weeks to reschedule it. [Id.]. NCDPS dentists

are not involved in the creation of or revisions to the NCDPS Sick Call Policy.

They do not place inmates on the Sick Call Appointment waiting list or ensure

that inmates are scheduled for appointments with dentists. [See id. at ¶ 7].

On November 2, 2015, Plaintiff completed an Appointment Request

complaining that “[his] partial [denture] broke.” [Doc. 90-1 at 4]. Dr.

Townsend first treated Plaintiff on November 10, 2015 at Mountain View for

planned fillings of teeth #8 (upper right front) and #11 (upper left canine) and

an impression to repair Plaintiff’s broken upper partial denture. [Doc. 90 at ¶

8]. At this time, Plaintiff’s upper arch consisted of teeth #3 (upper first molar),

#5 (upper right first bicuspid), #8, and #11, all of which had been previously

restored with either a crown or fillings. Plaintiff’s lower arch consisted of

most of his front teeth and tooth #18 (lower second molar). Dr. Townsend

saw Plaintiff on November 30, 2015 to deliver the repaired upper partial

denture, when Plaintiff reported that it “looks, feels good.” [Id. at ¶ 8].

On January 9, 2016, Plaintiff completed an Appointment Request

complaining that the “partial plate” he received “5 weeks ago broke already.”

[Doc. 90-1 at 15]. Plaintiff was seen a few days later by Dr. Rickman in

response to this Appointment Request. [Id. at 17]. At this visit, Dr. Rickman

noted that Plaintiff “fractured #6/7 off partial again” and requested that the

partial be repaired again with the “addition of metal reinforcement if possible.”

[Id.]. Plaintiff’s partial denture was repaired, and Plaintiff was seen by Dr.

Rickman on February 9, 2016 for a fitting and its delivery to Plaintiff. [Doc.

90-1 at 20; Doc. 82 at ¶¶ 4-5].

On May 28, 2016, Plaintiff completed another Appointment Request

complaining that “[his] partial plate broke again. It keeps happening.” [Doc.

90-1 at 22]. Plaintiff was seen a few days later, on June 1, 2016, by Dr.

Townsend. [Id. at 23]. Dr. Townsend ordered that Plaintiff’s upper partial

denture be sent for repairs again because the #6, #7 flange had fractured

off. [Doc. 90 at ¶ 10; Doc. 90-1 at 23]. Dr. Rickman adjusted the repaired

upper partial denture and delivered it to Plaintiff on June 21, 2016. [Id.; Doc.

82 at ¶ 6; Doc. 90-1 at 26].

On December 2, 2016, Plaintiff completed another Appointment

Request, complaining that “[his] back lower molar broke, and the large filling

fell out. It is painful and may have to be removed.” [Doc. 90-1 at 28]. On

December 6, 2016, Plaintiff was seen by Dr. McAdoo, an African American

dentist, in response to this complaint.7 Dr. McAdoo diagnosed Plaintiff’s

7 Contrary to Plaintiff’s allegations, the documents reflect that Dr. Townsend did not see

Plaintiff in December 2016. [Doc. 90 at ¶ 11]. Furthermore, Dr. Townsend denies that

he refused to repair Plaintiff’s tooth #11, that he told Plaintiff he would consider pulling

tooth #18 as “non restorable with large carious lesion, irreversible pulpitis.”

[Id. at 29]. Dr. McAdoo recommended that tooth #18 be extracted. Plaintiff

agreed to schedule this procedure and was “pleased with his treatment.”

[Id.]. The extraction was scheduled for January 11, 2017 at 8:10 a.m., but

Plaintiff failed to show up for the appointment. [Doc. 90 at ¶ 11; Doc. 90-1

at 32]. On the same day, Plaintiff filed an Appointment Request, complaining

that “[his] tooth broke and hurts” and that “[he] filed a sick call about 6 weeks

ago, but [he is] still in pain.” [Doc. 90-1 at 31]. Plaintiff then asks, “When

can I get the tooth repaired or pulled?” [Id.].

Dr. Townsend saw Plaintiff on January 18, 2017 in response to

Plaintiff’s January 11, 2017 Sick Call Request. [Doc. 90 at ¶ 12]. Dr.

Townsend noted that Plaintiff missed his last appointment and that x-rays

showed that tooth #18 is abscessed and non-restorable. [Doc. 90-1 at 33].

Dr. Townsend ordered that Plaintiff be put on the schedule for extraction.

[Id.]. Dr. Townsend performed the extraction on February 22, 2017. [Id. 39].

On February 27, 2017, Plaintiff completed another Appointment Request,

out all of his top teeth and request a full top denture, or that he told Plaintiff it would take

a year to get a denture. [Id.]. Dr. Townsend also denies telling Plaintiff in December 2016

or otherwise that Plaintiff, “you will figure something out,” in relation to Plaintiff chewing

without top teeth. [Id.]. These differences, however, do not raise genuine issues of

material fact because the records are clear as to what treatment the Plaintiff actually

received, as explained herein.

complaining that the stitch was coming out of the extraction site and that “the

hole [was] very painful.” [Id. at 43]. Plaintiff was seen the next day by

another dentist, Dr. Thomas Donnelly, who diagnosed Plaintiff with dry

socket, a known complication of tooth extraction, and treated Plaintiff. [Doc.

90 at ¶ 12; Doc. 90-1 at 44]. Plaintiff was seen the next day in follow up by

Dr. Townsend. Plaintiff’s dry socket resolved without further complication.

[Id.; Doc. 90-1 at 46].

On March 14, 2017, Plaintiff completed another Appointment Request,

complaining that his “left canine” felt chipped or broken. [Doc. 90-1 at 48].

Dr. Townsend saw Plaintiff on March 21, 2017 for this complaint and

determined that Plaintiff had lost part of the filling on tooth #11. [Doc. 90 at ¶

13; Doc. 90-1 at 50]. Dr. Townsend ordered that restoration of Plaintiff’s

tooth be scheduled. [Id.]. Dr. Donnelly repaired tooth #11 on March 28, 2017

and told Plaintiff that the tooth had a guarded prognosis. [Doc. 90-1 at 52].

On June 3, 2017, Plaintiff completed another Appointment Request,

again complaining that his partial denture was broken. [Id. at 55]. Dr.

Townsend saw Plaintiff on June 14, 2017 for this complaint. [Doc. 90 at ¶

14]. Dr. Townsend noted that #9 and #10 were broken off the partial denture

and sent it to the lab to be repaired. [Id.; Doc. 90-1 at 57]. On July 9, 2017,

before Plaintiff’s partial denture was returned, Plaintiff completed another

Sick Call Appointment Request, complaining that the filling put “in [his] upper

canine recently fell out already.” [Doc. 90-1 at 60].

On July 13, 2017, Dr. Rickman saw Plaintiff for fitting and return of

Plaintiff’s partial denture and for Plaintiff’s complaint regarding his lost filling

in tooth #11. [Id. at 61]. Examination by Dr. Rickman showed “very deep,

recurrent decay” and a “beginning abscess.” [Id.; Doc. 82 at ¶ 7]. Dr.

Rickman felt that this tooth was not restorable and recommended to Plaintiff

that it be extracted. [Doc. 82 at ¶ 7]. Dr. Rickman’s notes from this visit

state, in part, as follows:

Distressed [patient] as he states this is only tooth that

holds in the partial. Advised on need for full exam

and radiographs and consider full Max denture if

unable to wear partial with existing teeth, which is

most likely. [Patient] states strong gag reflex and

need for partial as palate is only partially covered.

Readvised of [diagnosis] of abscess #11 and

treatment recommendation of removal, not filling.

Readvised need for full exam and radiographs to

generate [treatment] plan. [Patient] seemed resistive.

Advised alternative to [extraction] would be do

nothing, [patient] does not qualify for [endodontics]8

due to large amount of tooth missing.

[Doc. 90-1 at 61; see Doc. 90 at ¶ 15]. The treatment plan recommended by

Dr. Rickman was appropriate in all respects and would have appropriately

addressed Plaintiff’s dental conditions. [Doc. 82 at ¶ 7]. Plaintiff told Dr.

8 Endodontics means root canal treatment. [Doc. 90 at ¶ 15].

Rickman he would think about the treatment plan and follow-up with a sick

call request as needed. [Id.].

On July 30, 2017, after having been told that tooth #11 needed to be

extracted, Plaintiff completed another Appointment Request, complaining

“about the hole in [his] tooth.” [Doc. 90-1 at 63; Doc. 90 at ¶ 16]. Plaintiff

stated, “I hate to leave the hole, but need the tooth to hold my partial plate.”

[Id.]. Dr. Townsend saw Plaintiff on August 8, 2017 for this complaint. [Doc.

90 at ¶ 16; Doc. 90-1 at 65-66]. Plaintiff wanted tooth #11 to be filled, if

possible. Dr. Townsend explained to Plaintiff that retention of tooth #11 was

not possible under the circumstances, that tooth #11 would no longer support

an upper partial denture, and recommended extraction of his remaining

upper teeth and a full upper denture. [Id.; Doc. 90-1 at 66]. Plaintiff “did not

want to do anything until [the] tooth [was] causing him more trouble.” [Doc.

90-1 at 66; see Doc. 90 at ¶ 16].

On February 14, 2018, Plaintiff completed another Appointment

Request, complaining that his “partial plate broke again.” [Doc. 90-1 at 67].

Dr. Townsend saw the Plaintiff on February 21, 2018 for this complaint and

sent the partial to the lab for repair. [Doc. 90 at ¶ 17; Doc. 90-1 at 69]. Dr.

Townsend saw Plaintiff for the last time on March 14, 2018 to fit and return

Plaintiff’s repaired partial denture to him. [Id.; Doc. 90-1 at 72]. Thereafter,

Plaintiff was transferred to Alexander. [See Doc. 82 at ¶ 9].

On June 22, 2018, now at Alexander, Plaintiff completed another

Appointment Request, complaining that “[his] canine broke” and asking, “can

you save it[?].” [Doc. 90-1 at 74]. Dr. Rickman saw Plaintiff on August 1,

2018, although it is unclear whether this visit was in response to this

appointment request. [See Doc. 90-1 at 76; Doc. 82 at ¶ 9]. Dr. Rickman’s

notes from this visit provide, in part, as follows:

[Patient] presented for consult concerning

treatment…. [Patient] states desire to have

something placed in hole – points to #11 – so things

“won’t go up in there” and that this tooth still helps

hold his partial, which has #’s 6/7 fractured but not

completely off. Advised #11 was not restorable by

any method – tooth is off at gum line and everything

is soft and not viable as tooth structure. [Patient]

asks if implant could be done on this area to help hold

up a partial or if implants could be placed throughout.

Advised that on street that these may be options, but

is Medium Custody and not eligible for treatment due

to custody level. Discussed his Dental needs until

[patient] stated he had to relieve himself and [patient]

dismissed from clinic. Advised if he want to have

partial repaired to let Dental know.

[Doc. 90-1 at 76-77]. DPS policy did not authorize a dental implant because

the treatment option Dr. Rickman offered Plaintiff was “viable and

appropriate.” A dental implant was not medically necessary. [Doc. 82 at ¶

9]. Furthermore, even if a dental implant might be an option outside of the

penal system, Plaintiff was not eligible for treatment by an outside dentist

(even at his own expense) because of Plaintiff’s custody status. [Doc. 82 at

¶ 9]. Dr. Rickman had no further interactions with Plaintiff after this August

1, 2018 visit. [Id. at ¶ 10].

On August 17, 2018, Plaintiff completed another Appointment

Request, complaining again that his “partial plate broke!” [Doc. 90-1 at 78].

This Request was triaged on August 20, 2018 and Plaintiff was placed on

the waiting list. [Id. at 79]. Plaintiff proceeded to file additional requests

related to this complaint on September 1, 2018; September 7, 2018; and

September 28, 2018, despite being on the waiting list for treatment the entire

time. [Id. at 80, 81-84; Doc. 81 at ¶ 4]. Plaintiff was eventually seen on

October 3, 2018 by Dr. Abreu-Pena for this complaint. [See Doc. 90-1 at

85]. Dr. Abreu-Pena’s notes from this visit provide, in part, as follows:

[Patient] presents to clinic for broken upper partial. Is

broken again # 6-7 teeth part of the acrylic partial,

broke the metal piece. Recommended full maxillary

denture but [patient] refused. The actual partial has

only a clasp on # 5. For that reason always is broken

on acrylic #6-7. # 11 is retained root recommended

extraction. [Patient] refused to take alginate

impression to repair the partial. Send to the lab if

they can reinforce the metal or replace it. He

refuse[d] a complete upper denture and refuse[d]

alginate impression.

[Doc. 90-1 at 85 (emphasis added)]. Plaintiff’s broken upper denture was

sent to the lab on or about October 3, 2020, with instructions by Dr. Abreu-

Pena to “[p]lease repair upper partial reinforce the metal or [ ] a new one, if

is possible.” [Doc. 90-1 at 91]. This was the sixth repair of Plaintiff’s partial

upper denture. [Doc. 90 at ¶ 18]. The treatment Dr. Abreu-Pena

recommended and offered Plaintiff was appropriate in all respects and would

have addressed Plaintiff’s dental condition. [Doc. 81 at ¶ 5]. Plaintiff,

however, refused this treatment. [Doc. 90-1 at 85].

Plaintiff filed his original Complaint in this matter on November 13,

2018. [Doc. 1]. It was signed and dated November 3, 2018. [See Doc. 1 at

5]. On November 5, 2018, Plaintiff filed an Appointment Request,

complaining that Dr. Abreu-Pena “took [his] partial plate a month ago to send

to Raleigh for repair” and that he had not gotten it back yet. [Doc. 90-1 at

92]. This Request was triaged the next day and it was noted, “We received

his partial a week or two ago, but not able to deliver to him yet due to the

grievance letter he submitted. Waiting on DDS to complete grievance

process first.” [Id. at 93].

Dr. Abreu-Pena saw Plaintiff on November 15, 2018 to fit and return

Plaintiff’s partial denture. [Id. at 94]. At this visit, Dr. Abreu-Pena wrote the

following note regarding Plaintiff’s care:

I explained to [patient] the best treatment we can do

here is a full maxillary extraction with a complete

upper denture. Explain ext/impression/denture

process. He said: “I don’t want to do it” in reference

to take impressions for the full denture because he

has a bad gag reflex. [Patient] refuse[s] and wants

to stay with the partial. He discussed about putting

in a law suit assuming we’re neglecting the dental

[treatment] he requested. He believes the best

[treatment] for him is implants and bridges. [Patient]

said that he has a crown (Tooth # 3) that cost him a

lot of money and refuse[s] [extraction]. He discussed

… getting # 11 [root canal treatment] and place

permanent/temporary crown. Informed [patient]

tooth # 11 is not restorable due to it broken down by

the gum line. [Patient] disagrees and wants to keep

tooth, hoping to have it restore[d].

[Id. at 94]. The dental implants and bridges requested by Plaintiff “were not

medically necessary and therefore were not authorized under the DPS policy

and procedure manual.” [Doc. 81 at ¶ 6].

On February 21, 2019, Plaintiff filed another Appointment Request,

complaining about a broken incisor. [Doc. 90-1 at 96]. This Request was

triaged on February 25, 2019, and Plaintiff was placed on the waiting list for

treatment. [Id. at 97]. Plaintiff filed additional Requests on March 17, 2019;

March 27, 2019; April 10, 2019; and on April 18, 2019; despite being on the

waiting list the entire time for this complaint. [Doc. 81 at ¶ 7].

Dr. Abreu-Pena saw Plaintiff on April 23, 2019. At this visit, Plaintiff’s

broken tooth #8 and abscessed tooth #11 were treated. Dr. Abreu-Pena

“explained again the best treatment is full maxillary denture with full

extractions.” [Doc. 90-1 at 105]. Plaintiff again refused to do impressions

because of his bad gag reflex. [Id.]. Plaintiff refused to consent to full

extractions, but finally agreed to extract tooth #11 because of the abscess.

[Id.]. Plaintiff also insisted of having tooth #8 filled despite Dr. Abreu-Pena’s

advice that there was not enough tooth structure and that a filling of tooth #8

would likely fail and break again if Plaintiff bites hard food. [Id.; Doc. 81 at ¶

8]. Plaintiff advised that he wanted to keep “#8, 3, and 5 for at least 3 more

years,” which “is the time for his law suit.” [Doc. 90-1 at 105]. Dr. Abreu-

Pena removed decay from and filled tooth #8. [Id. at 106]. She also

scheduled the extraction of tooth #11, which she performed on April 30,

2019. [Id. at 106, 109]. Plaintiff again agreed only to a partial upper denture

at this time. [Id. at 109]. This is Dr. Abreu-Pena’s last visit with Plaintiff

reported in the record.

On September 24, 2019, Plaintiff filed a Sick Call Appointment

Request, complaining that, “Dr. Abreu said she would have a tooth added to

[his] partial when [his] gums healed from the extraction of [his] canine tooth.”

Plaintiff claims that he “was being denied dental treatment again.”9 [Doc. 90-

9 There are no records between the extraction performed by Dr. Abreu-Pena on April 30,

2019 and this Request suggesting that Plaintiff had previously requested, and/or been

denied, this care.

1 at 113]. Plaintiff was seen by Dr. Edward Erkes on October 10, 2019 for

this complaint. [Id. at 115]. Dr. Erkes noted that Plaintiff wanted a tooth

added to his upper partial denture to replace tooth #11. Dr. Erkes also noted

that, “[patient] has been told that he needs a full upper denture, but he

refuses that treatment at this time – just wants his partial denture repaired.”

[Id.]. Dr. Erkes, therefore, did impressions to add tooth #11 to Plaintiff’s

partial upper denture. Plaintiff was directed to return to care for delivery of

the partial denture. [Id.]. There are no further records related to Plaintiff’s

dental care in the record in this matter.

In addition to refusing the care recommended by Drs. Townsend,

Rickman, and Abreu-Pena, Plaintiff also refused to schedule recommended

teeth cleanings, although inmates are charged only $5 for such cleanings,

from at least November 2015 through March 2018 and “for years prior” to

this time. [Doc. 90 at ¶ 19].

2. The “Policymaker” Defendants10

Defendant Paula Smith is a medical doctor and the was the Director of

Health Services for the NCDPS from March 2001 until January 2018, when

10 In addition to Defendants Smith, Clare, Woodruff, and Plummer, the Court includes

Defendants Hooks and Lassiter within this designation. Plaintiff’s claim against Hooks is

based entirely on Hooks’ alleged adoption of the disputed policies in his position as

Secretary of the NCDPS, while Plaintiff’s claim against Lassiter is based on Lassiter’s

alleged failure to change medical and dental policies. [See Doc. 16 at 15].

she retired. [Doc. 93-1 at ¶¶ 2, 11]. At the times relevant to this matter, Dr.

Smith was not responsible for Dental Services in the NCDPS. Any

complaints or calls received in her office regarding dental services would

have been directed to Defendant James Clare, the NCDPS Dental Director

during the relevant times. [Id. at ¶ 13]. While Dr. Smith did draft the Health

Services Policy and Procedure and the Dental Services Policy and

Procedure, she relied heavily on the Dental Director and his staff in so doing.

[Id. at ¶¶ 14-15]. These policies had to provide procedures for providing

healthcare to many inmates, given the constraints of custodial and safety

concerns and the limited resources of staff. [Id. at ¶ 15]. Because of the

number of inmates and the somewhat limited resources of staff and dental

care providers, some limitations are reasonable and necessary. [Id. at ¶ 16].

For instance, Policy No. TX V-6, Section II.C.3(b) of the Health Services

Policy and Procedure Manual balances these interests. That policy

provides, “Full dentures and partial dentures will be allowed only once in a

five[-]year period except under extenuating circumstances and with approval

of the Dental Director.” [Id.]. As such, while the policy reasonably limits

access to full and partial dentures, allowance is made for extenuating

circumstances. [Id.].

Another such limitation is found in Policy No. TX I-4. It provides that

an inmate may obtain medical or dental services outside of the NCDPS at

his or her own expense if certain conditions are met, including that the

“applicant must be in minimum custody.” [Id. at ¶ 17; Doc. 83 at ¶ 5: Clare

Declaration; Doc. 83-3 at ¶ 2]. This policy is born of custodial and safety

concerns. Namely, the NCDPS has determined that any prisoner who is not

a minimum custody prisoner poses an unacceptable custodial or safety risk

to the public or staff. [Id. at ¶ 17]. Because Plaintiff is a medium custody

inmate, he is not eligible to receive medical or dental treatment outside of

the prison system, even at his own expense. [Doc. 83 at ¶ 5].

Dr. Smith attests, with her more than 20 years of NCDPS experience,

that NCDPS Policy and Procedure for the provision of healthcare during her

time as Medical Director was adequate to provide healthcare to inmates in

accordance with the community standard of care. [Doc. 93-1 at ¶ 19].

Contrary to Plaintiff’s allegations, Dora Plummer was not Dr. Smith’s

successor as Medical Director, but rather a registered nurse who was

employed by the NCDPS from March 2017 until late 2018, when she retired.

[Doc. 93-1 at ¶ 21; Doc. 93-2 at ¶ 7: Plummer Declaration]. Defendant

Plummer was a Communications Coordinator/Family Liaison for Health

Services for the entire NCDPS. [Doc. 93-2 at ¶ 6]. Her responsibilities in

this position included, among other things, responding to written

correspondence regarding healthcare concerns and addressed issues

therein as appropriate. [Id. at ¶ 8]. Defendant Plummer did not provide

medical services to Plaintiff. [Id. at ¶ 10].

Defendant James Clare is the NCDPS Dental Director. [Doc. 83 at ¶

1]. The Dental Services Policy and Procedure, pursuant to which dental care

and treatment are provided to NCDPS inmates, is promulgated by the

NCDPS, not by Dr. Clare or Defendant Donna Woodruff, the Assistant Dental

Director. [Id. at ¶ 4]. Dr. Clare attests, according to Plaintiff’s dental record,

Plaintiff has, at all times, been offered medically necessary and appropriate

dental treatment, including, but not limited to, restorations (fillings),

extractions, and partial and full dentures. [Id. at ¶ 6]. Furthermore, the dental

procedures that were offered to Plaintiff are routinely used in patients who

are not incarcerated. [Id.]. Plaintiff, however, demanded that he be provided

more extensive dental procedures, such as endodontics, crowns, bridges,

and dental implants that were not medically necessary and, therefore, not

authorized under the NCDPS Dental Services Policy and Procedure Manual.

[Id.].

Neither Defendant Hooks nor Defendant Lassiter were involved in the

day-to-day provision of healthcare or in the formulation of procedure for the

provision of healthcare. [Doc. 93-1 at ¶ 18]. Dr. Smith attests that she was

not aware of any pervasive problems in the provision of healthcare to

inmates that would have required the intervention of either Defendant Hooks

or Defendant Lassiter. [Id. at ¶ 20].

This matter is now ripe for disposition.

IV. DISCUSSION

Claims under 42 U.S.C. § 1983 based on an alleged lack of or

inappropriate medical treatment fall within the Eighth Amendment’s

prohibition against cruel and unusual punishment. Estelle v. Gamble, 429

U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a

plaintiff must show a “deliberate indifference to serious medical needs” of the

inmate. Id. “Deliberate indifference requires a showing that the defendants

actually knew of and disregarded a substantial risk of serious injury to the

detainee or that they actually knew of and ignored a detainee’s serious need

for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th

Cir. 2001) (citations omitted). “To establish that a health care provider’s

actions constitute deliberate indifference to a serious medical need, the

treatment must be so grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to fundamental fairness.” Miltier v.

Beorn, 896 F.2d 848, 851 (4th Cir. 1990).

Evidence that might be sufficient to support negligence and medical

malpractice claims do not, without more, rise to the level of a cognizable

Section 1983 claim. Estelle, 429 U.S. at 106; Grayson v. Peed, 195 F.3d

692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard—a

showing of mere negligence will not meet it.”). “[E]ven if a prison doctor is

mistaken or negligent in his diagnosis or treatment, no constitutional issue is

raised absent evidence of abuse, intentional mistreatment, or denial of

medical attention.” Stokes v. Hurdle, 393 F. Supp. 757, 762 (D. Md. 1975),

aff’d, 535 F.2d 1250 (4th Cir. 1976). Further, the constitutional right is to

medical care. No right exists to the type or scope of care desired by the

individual prisoner. Id. at 763. Therefore, a disagreement “between an

inmate and a physician over the inmate’s proper medical care [does] not

state a § 1983 claim unless exceptional circumstances are alleged.” Wright

v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (dismissing the plaintiff’s § 1983

claim against a defendant physician for allegedly discharging the plaintiff too

early from a medical clinic, as such claim did not rise to the level of deliberate

indifference but would, “at most, constitute a claim of medical malpractice”).

To be found liable under the Eighth Amendment, a prison official must

know of and consciously or intentionally disregard “an excessive risk to

inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994);

Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). Farmer, 511 U.S.

825, 837 (1994). A prison official, however, is not liable if he knew the

underlying facts but believed, even if unsoundly, that the risk to which the

facts gave rise was insubstantial or nonexistent. Farmer, 511 U.S. at 837.

A. Defendants Townsend, Rickman, and Abreu-Pena

To succeed on a claim against Defendants Townsend, Rickman, and

Abreu-Pena under the Eighth Amendment, Plaintiff must show a deliberate

indifference to Plaintiff’s serious medical needs. Estelle, 429 U.S. at 104.

To establish such indifference, the “treatment must be so grossly

incompetent, inadequate, or excessive as to shock the conscious or to be

intolerable to fundamental fairness.” Miltier, 896 F.2d at 851. Absent

exceptional circumstances, a disagreement between a prisoner and a health

care provider over the prisoner’s proper care is not grounds for a § 1983

claim. Wright, 766 F.2d at 849.

Here, the forecast of evidence shows, at best, a disagreement between

Defendants Townsend, Rickman, and Abreu-Pena and the Plaintiff regarding

the appropriate dental care for Plaintiff’s dental conditions.11 See Wright, 766

11 It is worth noting that, in addition to having possibly fabricating certain Sick Call

Appointment Request, Plaintiff’s allegations are wrought with mischaracterizations and

misstatements of Plaintiff’s dental care, as evidenced by Plaintiff’s dental record. For

instance, Plaintiff alleges that in December 2016 Plaintiff saw Dr. Townsend and Dr.

Townsend refused to fill or repair Plaintiff’s upper canine when Plaintiff’s filling fell out.

[Doc. 16-1 at 3]. Plaintiff, however, was not seen by Dr. Townsend in December 2016,

F.2d at 849. Namely, the forecast of evidence shows that these Defendants

fully addressed Plaintiff’s dental needs and that Plaintiff simply wanted these

Defendants to prescribe and provide different treatment than he received.

Specifically, Plaintiff believed that he should have received dental implants,

crowns, and bridges to restore and replace his (many) missing teeth. Three

different dentists, however, recommended and would have ordered

extraction of Plaintiff’s few remaining upper teeth and full dentures, which

was appropriate care for Plaintiff’s clinical picture. Plaintiff, however,

repeatedly refused this care.

Plaintiff was seen 24 times by different dentists between November 2,

2015 and October 10, 2019. Plaintiff continued to be seen and treated

despite his refusal of recommended care, which could have preempted some

of these visits and additional repairs of Plaintiff’s partial upper denture. In

addition, Plaintiff declined to have his teeth cleaned for years before the

treatment at issue here, where Plaintiff’s conditions could very well have

been prevented or mitigated had he not refused regular, basic dental care.

but rather by Dr. McAdoo. Dr. McAdoo recommended extraction of Plaintiff’s tooth #18,

a procedure to which Plaintiff agreed but then failed to show up for. Perhaps given the

extensive dental care Plaintiff received between 2015 and 2019, Plaintiff simply

misremembers certain events and did not intend to mislead the Court in this regard.

Whatever the reason for the inconsistencies between certain allegations and Plaintiff’s

dental record, Plaintiff’s forecast of evidence is insufficient to create a genuine issue of

material fact in this case.

Plaintiff is simply not entitled to his most desired dental care at every level.

He was provided (or at least repeatedly offered) medically necessary dental

care. In short, the forecast of evidence has no tendency to support that any

treating dentist Defendant acted with “deliberate indifference” to Plaintiff’s

serious dental needs. See Estelle, 429 U.S. at 194, 97 S. Ct. at 285;

Overman v. Wang, 801 Fed. App’x 109, 111-12 (4th Cir. 2020) (affirming

judgment on bench trial finding prison doctor’s treatment of prisoner’s knee

injury was reasonable given the prisoner’s symptoms despite failure to

provide other, more advanced available treatment).

Furthermore, although the forecast of evidence tends to show that

Plaintiff experienced some delays in receiving care in September 2018 and

March and April of 2019, there is no forecast of evidence tending show that

these delays were caused by any particular Defendant or Defendants or that

any delays experienced by Defendant are constitutionally redressable, in any

event.

In sum, the forecast of evidence on Plaintiff’s claims against Defendant

Townsend, Rickman, and Abreu-Pena is insufficient. Given every

reasonable inference from the forecasted evidence, no reasonable jury could

find in favor of the Plaintiff on a § 1983 claim under the Eighth Amendment

such as Plaintiff has alleged. Summary judgment in favor of these

Defendants is, therefore, appropriate.

B. The “Policymaker” Defendants

Here, because Plaintiff received constitutionally adequate dental care,

his § 1983 claims against the remaining Defendants also necessarily fail.12

Furthermore, although Plaintiff disagrees with certain policies, he has not

shown that they evince a deliberate indifference to serious medical (or

dental) needs of prisoners in any event. For example, Plaintiff takes issue

with the policy that precludes him, as a medium custody prisoner, from

access to outside care providers at his own expense. Plaintiff ignores the

plainly legitimate purpose for such a policy, as forecasted by Defendants.

Namely, the NCDPS has determined that medium and maximum custody

prisoners would pose an unacceptable custodial or safety risk to the public

and/or to staff if they were to be seen by outside healthcare providers. As

such, Plaintiff’s lack of access to the particular care he desires is the

consequence of his custody status, which is based on legitimate policy, and

not the result of any Defendants’ deliberate indifference to Plaintiff’s dental

or medical needs.

12 As to Defendant Plummer, Plaintiff makes no allegations against her, other than she

“may have replaced Paula Smith” as Medical Director. [Doc. 16-1 at 6]. The

uncontroverted evidence, however, demonstrates that Defendant Plummer was a

registered nurse who was employed by the NCDPS but never served in the alleged

capacity. Defendant Plummer, therefore, will be dismissed as a Defendant in this matter.

To be sure, Plaintiff received medically necessary and appropriate

dental care and cannot demand care in excess of what is allowed by

legitimate policy. There is no forecast of evidence that any “policymaker”

Defendant had the requisite state of mind to establish “deliberate

indifference” under the law. Deliberate indifference describes a state of mind

more blameworthy than negligence, requiring (1) that a defendant have been

personally aware of facts from which the inference could be drawn that

Plaintiff would suffer a substantial risk of serious harm; and (2) that the

defendant had actually drawn the inference and recognized the existence of

such a risk. Farmer, 511 U.S. 825, 837 (1994). Further, a prison official is

not liable if he knew the underlying facts but believed, even if unsoundly, that

the risk to which the facts gave rise was insubstantial or nonexistent. Id. at

837.

Here, the forecast of evidence in this case fails to satisfy these

elements as to any “policymaker” Defendant’s state of mind. The forecast of

evidence does not show that Defendants Smith, Clare, and Hooks had any

knowledge of Plaintiff’s care or any facts from which they could have drawn

an inference of substantial attendant risk therefrom. See Gordon v. Schilling,

937 F.3d 348, 357 (2019) (“The subjective component is satisfied by proof

of a defendant’s deliberate indifference.”) (citation omitted).

Defendant Woodruff was aware of some of Plaintiff’s complaints,

having responded to Plaintiff’s April 30, 2018 letter to Dr. Smith, but there is

no forecast of evidence that she was aware of facts from which she could

have inferred a substantial risk of serious harm to Plaintiff. See Farmer, 511

U.S. at 837. To the contrary, Dr. Woodruff, in responding to Plaintiff’s letter,

investigated Plaintiff’s care, and satisfied herself that Plaintiff was being

offered “reasonable treatment.” [Doc. 16-1 at 23].

Finally, as to Defendant Lassiter, Plaintiff alleges that he sent Lassiter

a “grievance” in May 2018, complaining that “the dentist here was to pull all

[his] top teeth – even a good crown – and order a full top denture, which

takes about a year to get” and about various prison dental policies, including

the policy precluding outside services for medium and maximum custody

prisoners and the policy allowing full or partial dentures once every five

years. [Doc. 16-1 at 24]. Even giving Plaintiff the benefit of a very generous

inference that Defendant Lassiter received this letter, and that he, therefore,

had actual knowledge of Plaintiff’s complaints therein, there remains no

forecast of evidence showing that Defendant Lassiter had a deliberately

indifferent state of mind. Namely, Plaintiff’s letter to Lassiter did not present

facts from which Lassiter could have inferred that Plaintiff would suffer

substantial risk of serious harm. Rather, the letter reflected that “the dentist”

was offering reasonable care in accordance with prison dental policy with

which Plaintiff disagreed. As such, there was no risk of serious harm

Defendant Lassiter should or could have inferred. See Farmer, 511 U.S. at

837.

As such, Plaintiff has also failed to raise a genuine issue of material

fact as to Defendants Smith, Clare, Woodruff, Plummer, Hooks, and Lassiter.

Summary judgment for all Defendants is, therefore, appropriate.

IV. CONCLUSION

In sum, for the reasons stated herein, the Court grants summary

judgment for all Defendants.

IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Summary

Judgment [Doc. 74] is DENIED; Defendants’ Motions for Summary

Judgment [Docs. 80, 88, 91] are GRANTED; and this action is dismissed

with prejudice.

The Clerk is respectfully instructed to substitute the true full name of

Defendant FNU Townsend as Defendant Tim F. Townsend in the docket in

this matter and to correct the spelling of Defendant Claire to Clare.

The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED.

Signed: September 22, 2020

5 a ai

Reidinger ey,

Chief United States District Judge Alls

42