NGUYEN v. KASPER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER NGUYEN, :

Plaintiff, :

: No. 1:20-cv-86

v. :

: (Judge Rambo)

DR. GERALD KASPER, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to the motions for summary judgment

(Doc. Nos. 58, 62) filed by pro se Plaintiff Christopher Nguyen (“Plaintiff”) and

Defendant Dr. Gerald Kasper (“Kasper”). The motions are fully briefed and ripe for

disposition.

I. BACKGROUND

On January 7, 2020, Plaintiff, who is currently incarcerated at the State

Correctional Institution in Waymart, Pennsylvania (“SCI Waymart”), initiated the

above-captioned case by filing a complaint pursuant to 42 U.S.C. § 1983 in the

United States District Court for the Eastern District of Pennsylvania. (Doc. No. 1.)

In an Order dated January 14, 2020, that court transferred the matter to this Court

for further proceedings. (Doc. No. 5.) In an Order dated January 17, 2020, this

Court dismissed Joseph Vinansky as a Defendant and directed service of Plaintiff’s

complaint upon Defendant Kasper. (Doc. No. 7.)

Defendant Kasper subsequently filed a motion to dismiss. (Doc. No. 14.) In

a Memorandum and Order dated June 17, 2020, the Court denied the motion to

dismiss and directed Defendant Kasper to file an answer within fourteen (14) days.

(Doc. Nos. 23, 24.) Defendant Kasper filed his answer on June 30, 2020. (Doc. No.

25.) Plaintiff subsequently filed a motion for leave to file an amended complaint

(Doc. No. 35) and an amended complaint (Doc. No. 36) to set forth the full name of

Defendant Kasper and reflect the Court’s previous dismissal of Defendant Vinansky.

In an Order dated November 19, 2020, the Court granted Plaintiff’s motion. (Doc.

No. 38.)

In his amended complaint, Plaintiff avers that he saw Defendant Kasper on

November 21, 2017, and that Defendant Kasper “removed and replaced [his] metal

filling with a temporary plastic filling.” (Doc. No. 36 ¶ 4.) Plaintiff’s “tooth pain

worsened . . . and he could not eat or chew any food for several days.” (Id. ¶ 5.)

Plaintiff submitted another sick call request on November 28, 2017 and was seen by

Defendant Kasper shortly thereafter. (Id. ¶ 6.) Defendant Kasper “prescribed

Motrin for the pain and swelling.” (Id.) Plaintiff asked Defendant Kasper to replace

the temporary plastic filling with a permanent metal one, and Defendant Kasper

“refused[,] stating ‘because it cost[s] too much and Waymart won’t pay for it.’” (Id.

¶ 7.) Plaintiff continued to experience pain and submitted another sick call request.

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(Id. ¶ 8.) Defendant Kasper saw him on December 1, 2017, and Plaintiff “was then

told that he had an infection.” (Id.) Defendant Kasper “treated [P]laintiff with a

white liquid which he applied to his tooth, and prescribed penicillin for the

infection.” (Id. ¶ 9.) Plaintiff’s pain and swelling grew worse, and he submitted

another sick call on January 1, 2018. (Id. ¶ 10.) He saw Defendant Kasper on

January 11, 2018 and was told that his tooth had to be pulled because the infection

had spread. (Id. ¶ 11.) Plaintiff told Defendant Kasper that he did not want it pulled,

but Defendant Kasper pulled it anyway. (Id.) Based on the foregoing, Plaintiff

asserts a violation of his Eighth Amendment rights. (Id. ¶ 18.) He seeks declaratory

and injunctive relief, as well as damages. (Id. at 4.)

Discovery in this matter closed on December 30, 2020. (Doc. No. 38.) On

March 3, 2021, the Court granted Plaintiff’s motion for a sixty (60)-day extension

of time to file dispositive motions. (Doc. Nos. 49, 50.) Plaintiff subsequently filed

a motion to compel discovery. (Doc. No. 53.) Accordingly, in an Order dated April

28, 2021, the Court stayed the deadline for dispositive motions pending disposition

of that motion. (Doc. No. 54.) On April 30, 2021, the Court denied Plaintiff’s

motion, lifted the stay, and directed the parties to file dispositive motions within

thirty (30) days. (Doc. No. 56.) The parties subsequently filed their motions for

summary judgment.

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II. MOTIONS FOR SUMMARY JUDGMENT

A. Legal Standard

Federal Rule of Civil Procedure 56(a) requires the court to render summary

judgment “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).

“[T]his standard provides that the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed

fact is “material” if proof of its existence or nonexistence would affect the outcome

of the case under applicable substantive law. Id. at 248; Gray v. York Newspapers,

Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if

the evidence is such that a reasonable jury could return a verdict for the nonmoving

party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters

and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court

must view the facts and all reasonable inferences in favor of the nonmoving party.

Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963

F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59

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(3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may

not rest on the unsubstantiated allegations of his or her pleadings. When the party

seeking summary judgment satisfies its burden under Rule 56 of identifying

evidence which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with affidavits,

depositions, answers to interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986). The party opposing the motion “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Electric

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56 shifts the

burden of production to the nonmoving party, that party must produce evidence to

show the existence of every element essential to its case which it bears the burden

of proving at trial, for “a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”

Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.

1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party. White,

826 F.2d at 59. In doing so, the Court must accept the nonmovant’s allegations as

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true and resolve any conflicts in his favor. Id. (citations omitted). However, a party

opposing a summary judgment motion must comply with Local Rule 56.1, which

specifically directs the oppositional party to submit a “statement of the material

facts, responding to the numbered paragraphs set forth in the statement required [to

be filed by the movant], as to which it is contended that there exists a genuine issue

to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the

statement required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard simply

by citing the fact that he is a pro se litigant. These rules apply with equal force to

all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL 2853261, at *5 (M.D.

Pa. July 20, 2010) (pro se parties “are not excused from complying with court orders

and the local rules of court”); Thomas v. Norris, No. 02-CV-01854, 2006 WL

2590488, at *4 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules

of Civil Procedure).

“The rule is no different where there are cross-motions for summary

judgment.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).

“Cross-motions are no more than a claim by each side that it alone is entitled to

summary judgment, and the making of such inherently contradictory claims does not

constitute an agreement that if one is rejected the other is necessarily justified or that

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the losing party waives judicial consideration and determination whether genuine

issues of material fact exist.” Muhammad v. Martin, No. 3:19-cv-1316, 2021 WL

832645, at *2 (M.D. Pa. Mar. 4, 2021) (citing Rains v. Cascade Indus., Inc., 402

F.2d 241, 245 (3d Cir. 1968)). “[E]ach movant must demonstrate that no genuine

issue of material fact exists; if both parties fail to carry their respective burdens, the

court must deny [both] motions.” See Quarles v. Palakovich, 736 F. Supp. 2d 941,

946 (M.D. Pa. 2010) (citing Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d

Cir. 2008)).

B. Plaintiff’s Motion for Summary Judgment

As an initial matter, Defendant Kasper maintains that Plaintiff’s motion for

summary judgment should be dismissed because of Plaintiff’s failure to comply with

Local Rule 56.1. (Doc. No. 61 at 1.) The Court agrees. Local Rule 56.1 provides

that all motions for summary judgment must be “accompanied by a separate, short

and concise statement of the material facts, in numbered paragraphs, as to which the

moving party contends there is no genuine issue to be tried.” M.D. Pa. L.R. 56.1.

Moreover, “[s]tatements of material facts in support of, or in opposition to, a motion

shall include references to the parts of the record that support the statements.” Id.

In the instant case, although Plaintiff filed a declaration (Doc. No. 60) in support of

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his motion, this declaration does not qualify as a statement of material facts that

satisfies the requirements of Local Rule 56.1.

In light of his pro se status, Plaintiff was advised, at the outset of the above-

captioned action, of the requirements of Local Rule 56.1 by Standing Practice Order

dated February 8, 2011. (Doc. No. 13.) Moreover, Defendant Kasper raised

Plaintiff’s failure to comply with the requirements of Local Rule 56.1 in his brief

opposing Plaintiff’s motion for summary judgment. (Doc. No. 61.) More than a

month has passed since Defendant Kasper filed his brief in opposition, and Plaintiff

has not attempted to address or correct this deficiency. The Court, therefore, will

dismiss Plaintiff’s motion for summary judgment (Doc. No. 58) because of his

failure to comply with Local Rule 56.1. See Landmesser v. Hazelton Area School

Dist., 982 F. Supp. 2d 408, 412-13 (M.D. Pa. 2013) (dismissing pro se plaintiff’s

motion for summary judgment for the same reason).

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C. Defendant Kasper’s Motion for Summary Judgment

1. Statement of Material Facts1

Plaintiff’s deposition in this matter was taken on October 1, 2020. (Doc. No.

64 ¶ 3.) Plaintiff “first had dental care at SCI Coal Township in 2008, which was a

filling for the tooth involved in this case, ‘Tooth 30.’” (Id. ¶ 4.) The dentist who

saw him at that time provided a metal filling. (Id. ¶ 5.) Plaintiff “admitted that he

had lost four teeth before his problem with Tooth 30.” (Id. ¶ 6.) Plaintiff “had been

to the dentist about four times before going to prison at age 28.” (Id. ¶ 7.)

Plaintiff broke Tooth 30 in 2017 while he was eating. (Id. ¶ 8.) He was “seen

by [Defendant] Kasper, given an x-ray, and told he would be rescheduled for care.”

(Id.) Plaintiff returned to see Defendant Kasper “and had his metal filling removed,

1 The Local Rules of Court provide that in addition to filing a brief in opposition to the moving

party’s brief in support of its motion, “[t]he papers opposing a motion for summary judgment shall

include a separate, short and concise statement of material facts responding to the numbered

paragraphs set forth in the statement [of material facts filed by the moving party] . . . as to which

it is contended that there exists a genuine issue to be tried.” M.D. Pa. L.R. 56. 1. The Rule further

requires the inclusion of references to the parts of the record that support the statements. Id.

Finally, the Rule states that the statement of material facts required to be served by the moving

party will be deemed to be admitted unless controverted by the statement required to be served by

the opposing party. See id. Unless otherwise noted, the background herein is derived from

Defendant Kasper’s Rule 56.1 statement of material facts. (Doc. No. 64.) Plaintiff did not file a

response to Defendants’ statement of facts in compliance with Local Rule 56.1. Moreover,

Plaintiff’s complaint is not verified and, therefore, may not be treated as an affidavit in opposition

to summary judgment. See Ziegler v. Eby, 77 F. App’x 117, 120 (3d Cir. 2003) (noting that “the

complaint was not verified, thereby precluding the District Court from treating it as the equivalent

of an affidavit for purposes of Federal Rule of Civil Procedure 56(e)”). Accordingly, the Court

deems the facts set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed. R. Civ. P.

56(e)(2).

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and it was replaced by a white plastic filling.” (Id. ¶ 9.) Plaintiff “began having pain

with hot or cold foods again after the filling was put in, so he returned to [Defendant]

Kasper who prescribed extra-strength Motrin as well as Penicillin.” (Id. ¶ 10.)

Plaintiff “admitted that his [g]rievance documents do not say [Defendant] Kasper

told him that putting in another metal filling was too expensive.” (Id. ¶ 11.)

When Plaintiff returned to Defendant Kasper, “he told him he was still having

pain, so he applied a ‘white liquid’ to the tooth and he was again given Penicillin for

an abscess.” (Id. ¶ 12.) When Plaintiff returned again, Defendant Kasper “told him

the tooth was infected down to the gums, and it would have to come out or he would

have further problems.” (Id. ¶ 13.) Although Plaintiff did not want to have the tooth

pulled, he agreed to have Defendant Kasper pull it. (Id. ¶ 14.) Plaintiff “did not

remember signing the authorization to pull the tooth, but said, ‘But if I did sign it,

then I signed it.’” (Id. ¶ 15.) Plaintiff was given a denture to replace Tooth 30 and

admitted that “he no longer has heat or cold sensitivity at Tooth 30.” (Id. ¶¶ 17-18.)

Plaintiff “admitted that his source of information that there is a two year wait

before getting dental care at SCI Waymart was unnamed inmates.” (Id. ¶ 19.) He

“thought he was told about the alleged two year wait policy by [Defendant] Kasper

in 2013, but he had previously admitted that he first saw [Defendant] Kasper in

2017.” (Id. ¶ 20.) Plaintiff “admitted that when he had a problem with Tooth 30 at

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Waymart, he was seen right away.” (Id. ¶ 21.) The metal filling “was less expensive

than the composite restoration.” (Id. ¶ 22.)

2. Discussion

In the context of medical care, the Eighth Amendment “requires prison

officials to provide basic medical treatment to those whom it has incarcerated.”

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). To establish an Eighth

Amendment deliberate indifference claim, a claimant must demonstrate “(i) a

serious medical need, and (ii) acts or omissions by prison officials that indicate

deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d

575, 582 (3d Cir. 2003).

Deliberate indifference has been found “where the prison official (1) knows

of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2)

delays necessary medical treatment based on a non-medical reason; or (3) prevents

a prisoner from receiving needed or recommended medical treatment.” Rouse, 182

F.3d at 197. The “deliberate indifference” prong of the Eighth Amendment test

requires that the defendant actually know of and disregard “an excessive risk to

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

Circumstantial evidence can establish subjective knowledge if it shows that the

excessive risk was so obvious that the official must have known about it. See Beers-

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Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at

842)). Moreover, “[i]f a prisoner is under the care of medical experts . . . a non-

medical prison official will generally be justified in believing that the prisoner is in

capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Accordingly,

“absent a reason to believe (or actual knowledge) that prison doctors or their

assistants are mistreating (or not treating) a prisoner, a non-medical prison official

. . . will not be chargeable with the Eighth Amendment scienter requirement of

deliberate indifference.” Id. Finally, “whether or not a defendant’s conduct amounts

to ‘deliberate indifference has been described as a classic issue for the fact finder.’”

Young v. Kazmerski, 266 F. App’x 191, 193 (3d Cir. 2008) (quoting Armstrong v.

Squadrito, 152 F.3d 564, 567 (7th Cir. 1998)).

The second prong of the Eighth Amendment inquiry is whether the plaintiff’s

medical needs were serious. A serious medical need is “one that has been diagnosed

by a physician as requiring treatment or one that is so obvious that a lay person would

easily recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr. Inst.

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Not every condition is a

serious medical need; instead, the serous medical need element contemplates a

condition of urgency, namely, one that may produce death, degeneration, or extreme

pain. See id. Moreover, because only egregious acts or omissions can violate this

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standard, mere medical malpractice cannot result in an Eighth Amendment violation.

See White v. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990); see also Estelle v.

Gamble, 429 U.S. 97, 106 (1976) (“medical malpractice does not become a

constitutional violation merely because the victim is a prisoner”).

Additionally, prison medical authorities are given considerable latitude in the

diagnosis and treatment of inmate patients, see Young v. Kazmerski, 266 F. App’x

191, 194 (3d Cir. 2008), and a doctor’s disagreement with the professional judgment

of another doctor is not actionable under the Eighth Amendment. See White, 897

F.2d at 108-10. Furthermore, it is well settled that an inmate’s dissatisfaction with

a course of medical treatment, standing alone, does not give rise to a viable Eighth

Amendment claim. See Taylor v. Norris, 36 F. App’x 228, 229 (8th Cir. 2002);

Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-25 (7th Cir. 1996); Sherrer v.

Stephens, 50 F.3d 496, 497 (8th Cir. 1994); Brown v. Borough of Chambersburg,

903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional

judgment his behavior will not violate a prisoner’s constitutional rights.”); see also

Pearson v. Prison Health Servs., 850 F.3d 526, 535 (3d Cir. 2017) (“[W]hen medical

care is provided, we presume that the treatment of a prisoner is proper absent

evidence that it violates professional standards of care.”).

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“Dental care is one of the most important medical needs of inmates.” Hunt v.

Dental Dep’t, 865 F.2d 198, 200 (9th Cir 1989) (quoting Ramos v. Lamm, 639 F.2d

559, 576 (10th Cir. 1980)). The “objective component [of an Eighth Amendment

claim] is satisfied where a prisoner alleges unnecessary pain associated with delay

in receiving medical care.” See Bowlds v. Turn Key Health, No. CIV-19-726-SLP,

2020 WL 730876, at *3 (W.D. Okla. Feb. 13, 2020) (citations omitted); see also

Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (noting that a “three-week delay in

dental care, coupled with knowledge of the inmate-patient’s suffering, can support

a finding of an Eighth Amendment violation under section 1983”); Fields v. Gander,

73 F.2d 1313, 1315 (8th Cir. 1984) (concluding that plaintiff’s claim that prison

officials knew of his pain from an infected tooth but refused to provide dental care

for up to three weeks could support a finding of an Eighth Amendment violation).

In the instant case, Plaintiff does not allege a delay in receiving dental care.

Rather, Plaintiff “concedes that he DID receive care.” (Doc. No. 65 at 5.) Plaintiff,

however, suggests that Defendant Kasper violated his Eighth Amendment rights by

basing his actions on monetary reasons. (Id. at 3, 6.) According to Plaintiff,

Defendant Kasper replaced his metal filling with a plastic one because metal fillings

cost too much. (Id. at 3.) Plaintiff avers that the plastic filling caused his tooth to

become infected, ultimately resulting in its removal.

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Upon review of the record, the Court agrees with Defendant Kasper that

Plaintiff cannot maintain an Eighth Amendment claim against him. As an initial

matter, Plaintiff has presented no evidence to support his suggestion that the plastic

filling caused his tooth to become infected. Likewise, the record refutes Plaintiff’s

assertion that Defendant Kasper did not replace the metal filling with a new metal

filling because it cost too much. Defendant Kasper did not tell Plaintiff “that the

treatment plan instituted was cheaper than metal fillings.” (Doc. No. 64-3 at 3.)

Rather, he told Plaintiff “that the adhesive nature of the composite restoration

required the loss of less healthy tooth structure and that the composite restoration

was more insulating than the metal filling.” (Id.) Moreover, the treatment plan

provided, including the ultimate removal of the tooth “and the subsequent fabrication

of a mandibular partial denture[,] was actually considerably more costly than a metal

restoration.” (Id. at 4.)

Plaintiff asserts that his case is “exactly similar” to the issue presented in

Talbert v. Corr. Dental Assocs., 731 F. App’x 145 (3d Cir. 2018). In that matter,

Mr. Talbert, “on numerous occasions, and citing his extreme fear of needles in his

mouth, requested off-site oral surgery under general anesthesia in order to extract a

tooth.” Id. at 147. The defendants denied the request, but offered to “extract the

tooth with a local anesthetic (which would, of course, require placing a needle in

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Talbert’s mouth.” Id. Mr. Talbert refused that treatment and continued to request a

referral for surgery under general anesthesia. Id. The district court granted summary

judgment, concluding that the “denial of a referral for off-site oral surgery under

general anesthesia for Talbert’s tooth removal could not amount to deliberate

indifference.” Id. The Third Circuit remanded for further consideration, noting that

“if Talbert’s fear was an objective medical need, or an actual phobia, it should have

factored into the treatment plan.” Id. at 151.

Contrary to Mr. Talbert, who did not receive the needed extraction, the record

in the above-captioned action simply does not suggest that Defendant Kasper was

deliberately indifferent to Plaintiff’s need for dental care. After Plaintiff’s tooth

broke, he was given an X-ray and was seen by Defendant Kasper, who replaced the

metal filling with a “white plastic filling.” (Doc. No. 64 ¶¶ 8-9.) When Plaintiff

began experiencing pain, Defendant Kasper prescribed extra-strength and penicillin.

(Id. ¶ 10.) Plaintiff was subsequently treated with another course of penicillin and a

“white liquid” applied to the tooth after developing an abscess. (Id. ¶ 12.) When

Plaintiff returned again, Defendant Kasper “told him the tooth was infected down to

the gums, and it would have to come out or he would have further problems.” (Id.

¶ 13.) Although Plaintiff did not want to have the tooth pulled, he agreed to have

Defendant Kasper pull it. (Id. ¶ 14.) Plaintiff was given a denture to replace Tooth

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30 and admitted that “he no longer has heat or cold sensitivity at Tooth 30.” (Id.

¶¶ 17-18.) Plaintiff “admitted that when he had a problem with Tooth 30 at

Waymart, he was seen right away.” (Id. ¶ 21.)

Given the record, the Court cannot conclude that Defendant Kasper was

deliberately indifferent to Plaintiff’s need for dental care. Rather, as noted above,

Defendant Kasper saw Plaintiff on multiple occasions and provided treatment.

While Plaintiff may not be happy about the treatment ultimately provided, such a

disagreement is insufficient to maintain an Eighth Amendment claim. See Gause v.

Diguglielmo, 339 F. App’x 132, 136 (3d Cir. 2009). Moreover, nothing in the record

supports Plaintiff’s assertion that the plastic filling caused the infection, and the

record refutes Plaintiff’s allegation that he was not given another metal filling

because it was too costly. Accordingly, Defendant Kasper’s motion for summary

judgment will be granted.

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III. CONCLUSION

For the foregoing reasons, the Court will dismiss Plaintiff’s motion for

summary judgment (Doc. No. 58) for Plaintiff’s failure to comply with Local Rule

56.1. Defendant Kasper’s motion for summary judgment (Doc. No. 62) will be

granted. An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Date: July 14, 2021

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