Fisher v. Smith

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

TERRELL FISHER, TDCJ #02147651 §

§

Plaintiff, §

§ SA-22-CV-00146-XR

v. §

§

ROBERT M. SMITH, DDS, §

§

Defendant. §

ORDER

Before the Court are pro se Plaintiff Terrell Fisher’s (“Fisher”) 42 U.S.C. § 1983 Civil

Rights Complaints, Defendant Robert M. Smith DDS’s (“Dr. Smith”) Amended Motion for

Summary Judgment, Fisher’s responses to Dr. Smith’s amended motion for summary judgment,

Fisher’s Motion for Summary Judgment, and Dr. Smith’s response to Fisher’s motion for summary

judgment. (ECF Nos. 1, 32, 34, 36, 37, 43). Upon review, the Court orders Dr. Smith’s Amended

Motion for Summary Judgment GRANTED, and Fisher’s Motion for Summary Judgment

DENIED. (ECF Nos. 32, 36).

FACTUAL AND PROCEDURAL BACKGROUND

Records from the Texas Department of Criminal Justice (“TDCJ”) show Fisher was

convicted of indecency with a child by contact in McLennan County, Texas in 2017; he was

sentenced to ten years’ confinement. See Texas Department of Criminal Justice Inmate Search

(last visited Dec. 20, 2022). While confined, Fisher filed this § 1983 civil rights action against Dr.

Smith, who is employed as a dentist at TDCJ’s Ney Unit. (ECF No. 1). Fisher alleges the doctor

was deliberately indifferent to his serious medical needs by refusing to provide him with dentures.

Fisher contends he began seeking dentures in 2018 and has continued to seek them through the

filing of this action. As relief, Fisher seeks unstated “compensatory” damages and injunctive relief

in the form of provision of dentures.

The Court ordered service on Dr. Smith. (ECF No. 11). Dr. Smith filed an answer and a

motion to dismiss. (ECF Nos. 14, 20). The Court ordered the motion to dismiss to be treated as a

motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

(ECF No. 17). The Court further ordered Dr. Smith to file an amended motion for summary

judgment within 30 days if he so chose.

Dr. Smith filed his amended motion for summary judgment to which he attached five

exhibits. (ECF No. 32, Exhs. A–E). Exhibits A through C, which include grievances with a portion

of Fisher’s medical records, a litany of Fisher’s medical records, and an affidavit from Billy E.

Horton, DDS, who is the Dental Director for The University of Texas Medical Branch Correctional

Managed Care (“UTMB/CMC”), were ordered to be filed under seal at Dr. Smith’s request.

(ECF Nos. 31, 33). Later, Fisher filed his own motion for summary judgment, as well as two

responses to Dr. Smith’s amended motion for summary judgment. (ECF Nos. 34, 36, 43).

Dr. Smith filed a response to Fisher’s motion for summary judgment. (ECF No. 37).

ANALYSIS

Standard of Review

A district court “shall grant 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); see Funches v. Progressive Tractor & Implement Co., L.L.C., 905 F.3d 846,

849 (5th Cir. 2018). Where the nonmovant bears the burden of proof at trial, the summary

judgment movant must offer evidence that undermines the nonmovant’s claim or point out the

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absence of evidence supporting essential elements of the nonmovant’s claim; the movant may, but

need not, negate the elements of the nonmovant’s case to prevail on summary judgment. Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990). A complete failure of proof on an essential element

of the nonmovant’s case renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986).

Once the movant shows entitlement to judgment as a matter of law, the nonmovant must

bring forward evidence to create a genuine issue of material fact. Giles v. Gen. Elec. Co., 245 F.3d

474, 493 (5th Cir. 2001). “The evidence of the non–movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th

Cir.), cert. denied, 139 S.Ct. 69 (2018) (emphasis added) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986)). Mere allegations in the nonmovant’s complaint are not evidence.

Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). However, verified allegations in

an inmate–plaintiff’s complaint are deemed competent summary judgment evidence. See Al–Raid

v. Ingle, 69 F.3d 28, 32 (5th Cir. 1995). Nevertheless, even verified allegations cannot defeat

summary judgment if they are simply “conclusory allegations,” “unsubstantiated assertions,” or

constitute “only a scintilla of evidence.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir.

1994); see Hunt v. Pierson, 730 F. App’x 210, 212 (5th Cir. 2018) (quoting Turner v. Baylor

Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)).

The Fifth Circuit requires a nonmovant to submit “significant probative evidence” from

which the jury could reasonably find for the nonmovant. State Farm Life Ins. Co. v. Gutterman,

896 F.2d 116, 118 (5th Cir. 1990). The non–movant’s evidence must raise more than some

“metaphysical doubt as to the material facts.” Funches, 905 F.3d at 849. A genuine issue of fact

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does not exist “if the record taken as a whole could not lead a rational trier of fact to find for the

non–moving party.” Hunt, 730 F. App’x at 212 (quoting City of Alexandria v. Brown, 740 F.3d

339, 350 (5th Cir. 2014)).

Applicable Law

The Eighth Amendment prohibits cruel and unusual punishment. U.S. CONST. amend. VIII.

“Deliberate indifference” to an inmate’s serious medical needs violates the Eighth Amendment.

Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish deliberate indifference, an inmate must

first demonstrate a serious medical need and then show the defendant acted with deliberate

indifference to that need. Gibson v. Collier, 920 F.3d 212, 219 (5th Cir. 2019).1

“‘[D]eliberate indifference to serious medical needs of prisoners constitutes the

unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.’” Id. (quoting

Gamble, 429 U.S. at 104). Courts have often described the foregoing as an extremely high or

demanding standard. See id.; see also, e.g., Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752,

756 (5th Cir. 2001). An official must know of and disregard an excessive risk to inmate health or

safety, i.e., he “must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw that inference.” Farmer v. Brennan,

511 U.S. 825, 837 (1994). Neither negligence (medical malpractice), inadvertence, nor an inmate’s

disagreement with his or her treatment is enough to state a claim under the Eighth Amendment,

i.e., constitutes deliberate indifference. Gamble, 429 U.S. at 105–06; Gibson, 920 F.3d at 219

(citing Delaughter v. Woodall, 909 F.3d 130, 136 (5th Cir. 2018)). Rather, the Eighth Amendment

proscribes care so unconscionable as to fall below society’s minimum standards of decency.

1 The Court assumes without deciding that Fisher establishes a serious medical need.

4

Gibson, 920 F.3d at 219. An inmate seeking relief under the Eighth Amendment must show state

officials or employees acted with malicious intent. Gibson, 920 F.3d at 219. This has been

described as “wanton infliction of pain” or an act “repugnant to the conscience of mankind.”

Gamble, 429 U.S. at 105–06. Thus, courts have held that to succeed on this type of claim, an

inmate must show officials or employees “refused to treat him, ignored his complaints,

intentionally treated him incorrectly, or engaged in conduct that would clearly evince a wanton

disregard” and did so knowing of and disregarding an excessive risk to the inmate’s health or

safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Gibson, 920 F.3d at 220. Provision of

continuous or regular care generally precludes a finding of deliberate indifference. Banuelos v.

McFarland, 41 F.3d 232, 235 (5th Cir. 1995). In other words, when medical records reflect

assessment and treatment of a medical complaint, there is no deliberate indifference. See McCord

v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990).

Application

Fisher’s deliberate indifference claim arises under the Eighth Amendment’s prohibition

against cruel and unusual punishment. See U.S. CONST. amend. VIII. Fisher claims Dr. Smith was

deliberately indifferent to his serious medical needs when he refused to provide him with dentures,

asserting that the doctor advised Fisher that he would need to lose weight and be able to walk

without a walker to obtain dentures. (ECF No. 1). In response to Fisher’s claim, Dr. Smith first

contends that to the extent Fisher has sued Dr. Smith in his official capacity for monetary damages,

his claim fails as a matter of law because Dr. Smith is entitled to immunity under the Eleventh

Amendment. (ECF No. 32). Dr. Smith further contends that if Fisher seeks recovery against him

in his individual capacity, the summary judgment evidence establishes a lack of deliberate

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indifference because he treated Fisher for his dental issues and placed him on a list for dentures

through a pilot program that provided three–dimensional (“3D”) dentures for offenders who would

otherwise not qualify under TDCJ’s dental program. (Id.). Dr. Smith contends he did not refuse

Fisher’s request for dentures; rather, that decision was made by others based on protocols for the

3D program and on TDCJ policy relating to provision of dentures. (Id.). Dr. Smith argues the lack

of deliberate indifference entitles him to qualified immunity if Fisher seeks compensatory

damages. (Id.). Finally, as to any claim by Fisher for injunctive relief — provision of dentures —

Dr. Smith argues he is entitled to summary judgment because he lacks authority to single–handedly

provide Fisher with dentures. (Id.).

A. Eleventh Amendment Immunity — Official Capacity for Monetary Damages

The Eleventh Amendment bars suits by private citizens against a state in federal court.

Union Pac. R. Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011); K.P. v. Leblanc,

627 F.3d 115, 124 (5th Cir. 2010) (citing Hutto v. Finney, 437 U.S. 678, 700 (1978)); see U.S.

CONST. amend. XI (“The Judicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United States by Citizens

of another State, or by Citizens or Subjects of any Foreign State.”). Federal claims against state

employees in their official capacities are the equivalent of suits against the state. Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989); Monell, 436 U.S. at 658, 690 n.55 (1978). The bar

of the Eleventh Amendment is in effect when state officials are sued for monetary damages in their

official capacities. Kentucky v. Graham, 473 U.S. 159, 169 (1985); Cory v. White, 457 U.S. 85,

90, (1982). This is so because “a judgment against a public servant ‘in his official capacity’

imposes liability on the entity that he represents.” Graham, 473 U.S. at 169 (citation omitted).

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Regarding § 1983 claims, the Supreme Court has held a state is not considered a “person”

within the meaning of the statute. Will, 491 U.S. at 64. Accordingly, although state officials

literally are persons, if sued in their official capacities, they are not considered “persons” for

purposes of § 1983. Id. at 71. In other words, a suit against an official in his or her official capacity

is not a suit against the official, but is a suit against the official’s office. Id.; Brandon, 469 U.S. at

471. As a suit against the official’s office, it is no different from a suit against the state itself. Will,

491 U.S. at 71 (citing Graham, 473 U.S. at 165–66; Monell, 436 U.S. at 690 n.55). Thus, § 1983

suits brought against state officials in their official capacities for monetary damages or for

retrospective relief are, likewise, barred under the Eleventh Amendment. See id.

Fisher does not contest Dr. Smith’s assertion that he was employed as a dentist at TDCJ’s

Ney Unit during the relevant time. (ECF Nos. 32, 34, 43). As a TDCJ employee — dentist at

TDCJ’s Ney Unit — Dr. Smith is an official of the State of Texas. Thus, Fisher’s claims against

Dr. Smith in his official capacity for monetary damages or other retrospective relief are barred by

the Eleventh Amendment, entitling Dr. Smith to summary judgment on such claims. See Will, 491

U.S. at 71; Mayfield v. Dental Dep’t, No. 9:15-CV-90, 2015 WL 13675137, at *2 (E.D. Tex. Nov.

4, 2015) (finding dentist employed by TDCJ prison unit entitled to Eleventh Amendment immunity

for claims brought against him in official capacity for monetary damages), report and

recommendation adopted, 2018 WL 398436 (E.D. Tex. Jan. 11, 2018) see also U.S. CONST.

amend. XI.

B. Eleventh Amendment Immunity — Official Capacity for Injunctive Relief

Besides asking for monetary relief, Fisher also seeks injunctive relief in the form of

provision of dentures. (ECF No. 1). Although Dr. Smith is entitled to Eleventh Amendment

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immunity in his official capacity for monetary damages, the same is not necessarily true of Fisher’s

request for injunctive relief. See Graham, 473 U.S. 169 (holding that bar of Eleventh Amendment

is in effect when state officials are sued for monetary damages in their official capacities).

An exception to Eleventh Amendment immunity applies to claims against state officials

for prospective injunctive relief such as Fisher’s request for dentures. See Ex parte Young, 209

U.S. 123, 159–60 (1908). But, as Dr. Smith points out in his motion for summary judgment, to

succeed on a claim for injunctive relief, a plaintiff must establish three elements to show standing:

(1) injury in fact, (2) causation, and (3) redressability. (ECF No. 32). Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–61 (1992). To satisfy the redressability element, a plaintiff must show

the official has authority to provide the requested relief. Okpalobi v. Foster, 244 F.3d 405, 427

(5th Cir. 2001).

In Floyd v. Johnson, the court recognized that a Unit dentist lacked authority to provide

the inmate-plaintiff with dentures. No. 6:17-CV-00045-RP, 2018 WL 3017123, at *4 (E.D. Tex.

June 15, 2018). The court found the only action the Unit dentist could take under TDCJ policy was

to refer the inmate-plaintiff for consideration; the decision would be made by those on the

reviewing committee. Id. Thus, the court concluded the inmate-plaintiff could not show

redressability, denying him standing to seek injunctive relief from the Unit dentist in the form of

provision of dentures. Id. The court granted summary judgment for the Unit dentist. Id.

In the present case, Dr. Smith is a Unit dentist employed by TDCJ. (ECF No. 32). The

summary judgment evidence shows that as a Unit dentist, he is not in a position to provide or

mandate dentures for Dr. Smith in contravention of TDCJ policy. (ECF No. 32, Exhs. C, p. 2, D,

p. 162). Like the dentist in Floyd, Dr. Smith can do no more than refer an inmate for committee

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review, assuming he meets the criteria, (ECF No. 32, Exh. D), or as in this case, to an available

pilot program for those that cannot meet TDCJ criteria for dentures, which he did. (ECF No. 32,

Exh. C, p. 2). Thus, the Court finds that as a matter of law, Fisher cannot satisfy the redressability

requirement in order to obtain prospective injunctive relief for dentures from Dr. Smith. See Floyd,

2018 WL 3017123, at *4. Thus, Dr. Smith, in his official capacity, is entitled to summary judgment

regarding Fisher’s request for injunctive relief.

C. Absence of Deliberate Indifference — Individual Capacity

Fisher began his pursuit of dentures in 2018; he first saw Dr. Smith, the only named

defendant, in 2020 when he put in a sick call request. (ECF Nos. 1, 32, Exhs. B, pp. 145–46, C, p.

1). As noted above, Dr. Smith was the dentist for the Ney Unit where Fisher was confined during

the relevant time. (ECF No. 32). At the time he saw Dr. Smith, Fisher was “edentulous,” i.e.,

toothless. (ECF No. 32, Exh. C, p. 1). He complained of gum pain and an inability to eat meat; he

requested dentures. (ECF No. 32, Exh. B, p. 146). Dr. Smith advised Fisher he would be placed

on the denture list if he was eligible. (Id.). According to Dr. Billy Horton, DDS (“Dr. Horton”),

who was and is the Dental Director for UTMB/CMC, which provides medical and dental care for

TDCJ inmates, the “list” to which Dr. Smith referred was part of a now defunct pilot program to

provide 3D printed dentures to edentulous inmates who did not otherwise qualify for dentures

under UTMB/CMC policy. (ECF No. 32, Exh. C, pp. 1–2). At the time Dr. Smith first saw Fisher,

he and other Unit dentists had been advised about the pilot program and instructed to send the

names of potential qualifying inmates to Dr. Horton. (ECF No. 32, Exh. C, p. 2).

According to Dr. Horton’s affidavit and the UTMB/CMC policy for “Dental Prosthodontic

Services,” which were submitted as summary judgment evidence, inmates are provided dental

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prosthetics, such as dentures, only when it is considered “medically necessary,” which is when the

inmate’s health would be adversely affected without them. (ECF No. 32, Exhs. C, p. 1, D, p. 162).

Dental prosthetics can be medically necessary for those who have nutritional deficiencies because

of an inability to chew their food. (ECF No. 32, Exhs. C, p. 1, D, p. 162). But, as noted by Dr.

Horton and stated in the UTMB/CMC policy, most foods are “easily digested with minimal

mastication.” (ECF No. 32, Exhs. C, p. 1, D, p. 162). Moreover, even if nutritional deficiencies

are present, inmates are first placed on a special diet to remedy any deficiencies before any decision

about dentures is made. (ECF No. 32, Exhs. C, p. 2, D, p. 162).

As applicable to Fisher, whose medical records were reviewed by Dr. Horton, he

“maintained a consistent weight since becoming edentulous, and has continued to maintain a

constant weight, indicating that his inability to chew was likely not causing nutritional deficiencies

that would necessitate providing [Fisher] with dentures.” (ECF No. 32, Exh. C, p. 2).2 Fisher was

prescribed a special diet in 2018 after his teeth were originally removed, but he signed a refusal

for the diet on July 16, 2019. (Id.). According to Dr. Horton, Fisher’s weight maintenance and his

refusal of an edentulous diet made it “unlikely” that a finding of medical necessity would be made

in Fisher’s case. (Id.). Dr. Horton asserts that this information was conveyed to Fisher before Dr.

Smith ever began treating him. (Id.). Thus, Dr. Smith’s referral of Fisher to the 3D program rather

than the regular dental prosthodontic program. (ECF No. 32, Exhs. C, p. 2, D).

2 Fisher’s medical records indicate he is 5' 11" tall and his weight ranged during the relevant time from a low of 221

pounds on October 12, 2020, with a Body Mass Index (“BMI”) of 31, to a high of 236 pounds on September 8, 2021,

with a BMI of 33. (ECF No. 32, Exh. B, pp. 136, 139, 142, 145). Thus, throughout the relevant time, it appears Fisher

was gaining weight despite a lack of teeth or dentures. The Centers for Disease Control and Prevention’s website

states a person of Fisher’s height and weight with a BMI of 30 or higher is considered obese. See

https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator/bmi_calculator.html (last

visited Jan. 25, 2023).

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Following instructions for the 3D program, Dr. Smith referred Fisher to Dr. Horton.

(ECF No. 32, Exh. C, p. 2). Thus, the summary judgment evidence establishes Dr. Smith did not

deny Fisher dentures as he claims. (ECF No. 1). Rather, the summary judgment evidence shows

Dr. Smith took the only action available given UTMB/CMC policy and Fisher’s likely inability to

qualify based on “medical necessity.” (ECF No. 32, Exh. D, p. 162). Once referred, an inmate’s

medical records would be reviewed by Dr. Horton to determine whether the inmate was eligible

to participate. (ECF No. 32, Exh. C, p. 2). According to Dr. Horton’s sworn statement, Unit

providers “had no control over whether the [inmate] would be accepted into the pilot program”

once they were referred. (Id.). Dr. Horton testified that different factors, including inmate

restrictions, could affect the inmate’s ability to participate. (Id.).

The 3D program was conducted at TDCJ’s Goree Unit, which required an inmate to travel

and remain at the Goree Unit for at least ten days. (Id.). If an inmate could not travel and remain

at the Goree Unit for at least ten days, he could not participate. (Id.). Dr. Horton testified that upon

review, he learned Fisher had housing and climbing restrictions in place that made him ineligible

for the program. (ECF Nos. 32, Exhs. A, p. 8, C, p. 2). Dr. Horton informed Dr. Smith of Fisher’s

ineligibility; Dr. Horton advised Fisher that although he had referred him for placement in the 3D

pilot program, his current restrictions rendered him ineligible until the restrictions were

“changed/lifted.” (ECF Nos. 32, Exhs. A, p. 17, B, pp. 142–43, C, p. 2).

In apparent response to Dr. Smith’s admonitions, Fisher filed a grievance on November

16, 2020, seeking to have his restrictions removed. (ECF No. 32, Exh. A, pp. 2–3). The medical

provider’s response to the grievance states that although Fisher first sought to remove his

restrictions, he complained of knee pain and changed his mind when advised that removing the

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restrictions might cause him to lose his bottom–bunk designation. (ECF No. 32, Exh. A, pp. 3,

7–8). When advised about the consequences of removing his restrictions, Fisher “declined

climbing restriction be removed.” (ECF No. 32, Exh. A, p. 8).

According to Dr. Horton, the 3D denture program has now been ended and no longer

accepts new patients. (ECF No. 32, Exh. C, p. 2). Thus, the only way Fisher can receive dentures

is if they are determined to be medically necessary, which Dr. Horton asserts is “unlikely” given

Fisher’s current nutritional status. (Id.).

The Court accepts as true, as it must, Fisher’s claims that his gums are causing him pain

and he suffers “cuts and abrasions” when he eats. (ECF Nos. 1, 34, 43); see Darden, 880 F.3d at

727. However, the summary judgment evidence establishes, and Fisher seemingly agrees, that Dr.

Smith, the only defendant against whom Fisher brought this action, was not deliberately indifferent

to Fisher’s plight nor did he act with malicious intent. (ECF No. 43); see Gibson, 920 F.3d at 219.

After his first examination of Fisher, Dr. Smith, by procedure, referred him to the 3D denture

program, the only program available to Fisher given his inability to otherwise qualify for dentures

because of TDCJ policy on dental prosthetics. (ECF Nos. 32, Exhs. A, p. 8, C, p. 2, D, p. 162). In

response to a 2021 grievance filed by Fisher against Dr. Smith regarding dentures, which Fisher

attached to his Complaint, the TDCJ Practice Manager, Rachel Romine, advised Fisher that he had

“been assessed for the Denture Program” and “approved by the Unit Provider,” i.e., Dr. Smith.

(ECF No. 1). He was also advised that once approved by the Unit Provider, the Unit Provider “has

no control over the Denture Program,” and it is up to the “Denture Department” to provide services.

(Id.). He was advised to review the Dental Prosthodontic Service policy. (Id.).

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Fisher admits in one of his responses to Dr. Smith’s motion for summary judgment that Dr.

Smith referred him to the 3D denture pilot program and that Dr. Smith was simply following “his

supervisor[’s] orders.” (ECF No. 34). He also admits it was the “Dental Department” and Dr.

Horton, not Dr. Smith, who determined he was not qualified under the program. (Id.). His

complaint against Dr. Smith, as stated in his response, appears to be that Dr. Smith followed his

supervisor’s orders or that he even referred him in the first place. (Id.). Moreover, he specifically

admits in his response that Dr. Smith’s “allegation” has merit and “tells the whole story,” but

complains his rights were nevertheless violated. (Id.). In sum, Fisher admits that it was the dental

or denture department — Dr. Horton — who refused to accept Fisher into the 3D denture pilot

program after the referral by Dr. Smith. (Id.).

Accordingly, the Court finds the summary judgment establishes Dr. Smith did not refuse

to treat Fisher, did not ignore his complaints, did not intentionally mistreat him, nor did he engage

in conduct showing a wanton disregard for Fisher, knowing of and disregarding an excessive risk

to his health. (ECF Nos. 32, Exhs. C, p. 2, D, p. 162); see Farmer, 511 U.S. at 837; Gibson, 920

F.3d at 220. Rather, the summary judgment evidence establishes Dr. Smith: (1) provided Fisher

with regular care — seeing him on October 12, 2020, October 19, 2020, December 21, 2020, and

September 8, 2021— until Fisher signed a refusal to see Dr. Smith in 2022; and (2) referred Fisher

to the 3D pilot program after he first examined Fisher. (ECF Nos. 32, Exhs. B, pp. 133–34,

136–38, 139–41, 142–43, 145–46; C, pp. 1–2). The summary judgment evidence further

establishes that after the referral, provision of dentures was out of Dr. Smith’s hands as he was

merely the Unit provider. (ECF Nos. 1, 32, Exh. C, p. 2, 34). The Court finds that in this case Dr.

Smith provided regular care as sought by Fisher, including referring Fisher to the 3D denture pilot

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program, and from that point, provision of dentures was out of his hands. Accordingly, a finding

of deliberate indifference is precluded. See Banuelos, 41 F.3d at 235; see also Pierce v. Thaler,

577 F. App’x 296, 297 (5th Cir. 2014) (per curiam) (holding that where dentist’s summary

judgment evidence showed dentist provided treatment to inmate but was precluded by prison

policy from furnishing dentures, dentist was not deliberately indifferent to inmates serious medical

needs); Daugherty v. Luong, 485 F. App’x 696, 696–97 (5th Cir. 2012) (per curiam) (same);

Marquez v. Quarterman, 652 F. Supp.2d 785, 789 (E.D. Tex. 2009) (finding inmate’s claim of

deliberate indifference to serious medical needs against dental hygienist should be dismissed as

frivolous because she was not involved in denial of dentures but was receptive to request and

referred inmate to dentists for denture screening). Because the summary judgment evidence,

including Fisher’s medical records and Dr. Horton’s affidavit, reflect assessment of and

responsiveness to Fisher’s complaint, just not provision of the treatment he desired, there is no

deliberate indifference. See McCord, 910 F.2d at 1251 (holding that when medical records reflect

assessment and treatment of medical complaint, there is no deliberate indifference); Gibson, 920

F.3d at 219 (holding that disagreement with treatment does not constitute deliberate indifference).

Dr. Smith’s care or lack thereof was not so unconscionable as to fall below society’s minimum

standards of decency. Gibson, 920 F.3d at 219. Thus, the Court finds Dr. Smith is entitled to

summary judgment regarding Fisher’s Eighth Amendment claim of deliberate indifference to a

serious medical need.3

3 In Gregory v. Baucum, 787 F. App’s 206, 210 (5th Cir. 2019), the Fifth Circuit recognized the existence of several

opinions that provide persuasive authority that prison officials act reasonably when they provide dental treatment,

including soft food diets, instead of dentures.

14

Dr. Smith also contends he is entitled to qualified immunity. (ECF No. 32). When a

defendant properly pleads qualified immunity, as Dr. Smith has, the burden shifts to the plaintiff

to establish the defendant is not entitled to immunity by showing a violation of an actual

constitutional right that was clearly established at the time of the alleged violation. See Escobar v.

Montee, 895 F.3d 387, 393 (5th Cir. 2018); Romero v. City of Grapevine, 888 F.3d 170, 176 (5th

Cir. 2018). Thus, an assertion of qualified immunity alters the usual summary judgment burden of

proof. Brown v. Callahan, 623 F.3d 29, 253 (5th Cir. 2010). Despite this shifting burden, a court

must still “view the facts in the light most favorable to the nonmovant.” Darden, 880 F.3d at 727.

The Fifth Circuit requires a nonmovant to submit “significant probative evidence” from

which the jury could reasonably find for the nonmovant. State Farm Life Ins. Co. v. Gutterman,

896 F.2d 116, 118 (5th Cir. 1990). The non–movant’s evidence must raise more than some

“metaphysical doubt as to the material facts.” Funches, 905 F.3d at 849. A genuine issue of fact

does not exist “if the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party.” Hunt v. Pierson, 730 F. App’x 210, 212 (5th Cir. 2018) (quoting City of

Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014)).

As discussed above, Dr. Smith has established as a matter of law the absence of an Eighth

Amendment violation based on deliberate indifference to a serious medical need. See, supra.

Fisher did not raise a fact issue negating the absence of deliberate indifference. Therefore, Fisher

failed to establish a constitutional violation, and Dr. Smith is entitled to qualified immunity. See

Escobar, 895 F.3d at 393; Romero, 888 F.3d at 176 (holding that to avoid qualified immunity,

plaintiff must show violation of constitutional right and right was clearly established at time of

15

alleged violation). The Court finds Dr. Fisher is entitled to summary judgment based on qualified

immunity.

CONCLUSION

Based on the above, the Court finds Dr. Smith is entitled to summary judgment regarding

Fisher’s § 1983 claim of deliberate indifference to his serious medical needs. It therefore follows

that Fisher’s motion for summary judgment should be denied.

IT THEREFORE ORDERED that Dr. Smith’s Amended Motion for Summary Judgment

(ECF No. 32) is GRANTED and Fisher’s claim against Dr. Smith is DISMISSED.

IT IS FURTHER ORDERED that Fisher shall take nothing in this cause against Dr.

Smith.

IT IS FURTHER ORDERED that Fisher’s motion for summary judgment (ECF No. 36)

is DENIED.

It is so ORDERED.

SIGNED this 27th day of January, 2023.

UNITED STATES DISTRICT JUDGE

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