“Questions of medical judgment are not subject to judicial review.”
How later courts described this case
- “Questions of medical judgment are not subject to judicial review.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DANIEL F. SLONAKER,
Plaintiff,
v. Civil Action No. 2:18-cv-01173
JEAN KENNEDY, D.D.S.,
BETSY JIVIDEN, and DONNIE AMES,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are defendant Jean Kennedy’s motion for
summary judgment (ECF No. 36), filed April 21, 2020, and
defendants Betsy Jividen and Donnie Ames’ motion for summary
judgment (ECF No. 38), filed April 27, 2020.
This action was previously referred to United States
Magistrate Judge Dwane L. Tinsley, who on November 23, 2020,
submitted a Proposed Findings and Recommendation (“PF&R”) for
disposition of the pending motions pursuant to 28 U.S.C. §
636(b)(1)(B). ECF No. 43. The PF&R determined that Kennedy, a
dentist employed by Wexford Health Sources, Inc. to provide
dental care for prisoners at Mount Olive Correctional Complex
where plaintiff Daniel Slonaker is incarcerated, is entitled to
judgment as a matter of law on the plaintiff’s 42 U.S.C. § 1983
Eighth Amendment deliberate indifference claim alleged against
her. Id. at 5-10. The PF&R also found that Slonaker’s § 1983
Eighth Amendment claim alleging supervisor liability against
Jividen and Ames should be dismissed. Id. at 10-14. Inasmuch
as the Magistrate Judge found the defendants to be entitled to
judgment as a matter of law on the outstanding claims asserted
in this action, he recommended that the motions for summary
judgment be granted with the action to be dismissed from the
court’s docket. Id. at 14.1
The PF&R set a fourteen-day objection period, with
three additional days allocated for mailing. Id. at 14.
Slonaker thereafter submitted a letter-form motion, filed by the
Clerk on December 12, 2020, requesting an additional seventeen
days to object. ECF No. 45. The court granted a seventeen-day
extension on December 10, 2020. ECF No. 46.
Slonaker’s initial typed objection, which contains
multiple corrections made by pen or pencil, was filed by the
Clerk on December 14, 2020. ECF No. 47. He subsequently
submitted an amended objection, filed by the Clerk on December
1 Adopting a November 7, 2019 PF&R (ECF No. 30), the court
previously dismissed the claims alleged against defendants Tami
McGraw, Pam Givens, Sandra May, and Daniel Conn in a memorandum
opinion and order entered December 4, 2019. ECF No. 34. Only
the Eighth Amendment claims alleged against Kennedy, Jividen,
and Ames remain pending at this time.
2
22, 2020, requesting that the court “accept a typo[-]corrected
original and two copies to replace the deficient lone original”
he initially sent. ECF No. 48-2 (Cover Page to Amended
Objection). The court has examined the two sets of objections,
and it appears that the second varies from the first only in
that it corrects certain typographical mistakes.
As for the substance of his objection, Slonaker
essentially asserts that the Magistrate Judge failed to consider
several contentions regarding his claim against Kennedy, which
in the aggregate, present disputed material facts such that
summary judgment should be denied. ECF No. 48, at 2-4. He
claims that the PF&R overlooked the fact that Kennedy decided to
extract his #9 and #10 teeth during the same appointment on
August 22, 2017, when both were infected but refused to extract
both his #5 and #6 teeth on June 13, 2018 when they were both
infected. Id. at 2-3. Instead, Kennedy “called the plaintiff
back up the next day,” asked which tooth (#5 or #6) he would
like to have pulled, and only pulled the #5 tooth during a June
14, 2018 appointment. Id. at 3.
Slonaker also claims that the Magistrate Judge omitted
the fact that Kennedy stated after x-raying his teeth during the
June 13, 2018 appointment that “he and a hundred other inmates
3
would not tell her how to do her job,” and told him to, “[g]et
out of her chair [and] office now, or receive a write-up!” Id.
at 3. As a result of Kennedy’s actions, Slonaker claims he was
not “given proper treatment for two[-]and[-]a[-]half weeks
[during which] he suffered two bouts of super infections.” Id.
Slonaker generally asks that the court account for the
material facts of the case as documented in the complaint and
Slonaker’s subsequent filings. Id. at 3-4. He also requests
that the court order the production of the plaintiff’s entire
medical file.2 Id. at 3.
Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’” Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (first alteration added) (quoting 28 U.S.C. § 636(b)(1)).
2 Slonaker does not clarify why any specific documents from
his medical file apart from the ones that already appear in the
record would support his claims. He only indicates that his
entire medical file would generally prove the truthfulness of
his assertions and demonstrate that medical and dental personnel
were aware of his serious medical needs. ECF No. 48, at 3-4.
4
Slonaker does not object to the PF&R’s findings
regarding the summary judgment motion of Jividen and Ames.3
Specifically, the Magistrate Judge determined that: Slonaker
failed to exhaust his administrative remedies against Jividen
and Ames as required by the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a); there was no evidentiary basis for assessing
supervisor liability under § 1983 against Jividen and Ames; and
notwithstanding these issues, Jividen and Ames are entitled to
qualified immunity. ECF No. 43, at 10-14. The court agrees
with the Magistrate Judge’s analysis, and there being no
objection thereto, summary judgment will be entered in favor of
Jividen and Ames.
Insofar as Slonaker objects that the PF&R did not
account for some of the issues raised in the complaint
concerning Kennedy’s dental care (ECF No. 2), the court notes
that the pleading is a verified complaint, signed and sworn
under penalty of perjury. See Goodman v. Diggs, ---F.3d----,
2021 WL 280518, at *1 n. 2 (4th Cir. 2021). As such, it is
considered “the equivalent of an opposing affidavit for summary
3 In fact, Slonaker did not file a response to Jividen and
Ames’ motion for summary judgment.
5
judgment purposes, when the allegations contained therein are
based on personal knowledge.” Id. at *4 (quoting Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991)).
Although the PF&R did consider some of the allegations
of the verified complaint inasmuch as it acknowledged similar
arguments raised in Slonaker’s response to Kennedy’s motion for
summary judgment, it is not entirely clear whether it evaluated
the verified complaint as a piece of evidence equivalent to an
affidavit to the extent the allegations contained therein are
based on personal knowledge. See ECF No. 43. Accordingly, the
court will address Kennedy’s motion for summary judgment de
novo.
I.
Slonaker and Kennedy attest that the plaintiff saw
Kennedy on March 8, 2017, and requested that the dentist give
him dentures. ECF No. 2, at 6; ECF No. 36-1 (Affidavit of Jean
Kennedy, D.D.S.), at ¶ 3. She declined, informing him that “his
teeth were in such a condition that it was not advisable from a
dental standpoint to pull all of his teeth and give him
dentures.” ECF No. 36-1, at ¶ 3; see also ECF No. 36-3 (Dental
Inmate and Registration History documenting the March 8, 2017
appointment).
6
Slonaker subsequently filed a March 14, 2017 grievance
complaining of the dentist’s refusal to give him dentures for
his worn teeth. ECF No. 2, at 17 (March 14, 2017 Grievance).
In the grievance, he requested that the prison approve the
extraction of “badly worn/all teeth” for the purposes of
obtaining dentures, “as all other inmates[’] requests for
dentures to be made are granted.” Id. The unit manager denied
the grievance, and the warden affirmed this decision on appeal.
Id.
Slonaker subsequently had an appointment with Kennedy
on July 6, 2017, during which the plaintiff rejected the
dentist’s offer to fix a filling in his #18 tooth and again
requested dentures. ECF No. 36-1, at ¶ 4. Kennedy refused to
implant dentures inasmuch as, “his teeth were asymptomatic and
restorable through fillings, [and] it was in his best interest
to preserve them and the associated bones.” Id.; see also ECF
No. 36-4 (Dental Progress Note documenting the July 6, 2017
appointment). Kennedy treated Slonaker on August 17, 2017, when
she determined that his #9 and #10 teeth needed to be extracted
after finding, “severe occlusion attrition [that] induced
chronic apical periodontitis w/ PARLS and localized gingival,
7
facial tissue swelling.”4 ECF No. 36-5 (Dental Progress Note
documenting the August 17, 2017 appointment); accord ECF No. 36-
1, at ¶ 5. She extracted the #9 and #10 teeth on August 22,
2017. ECF No. 36-1, at ¶ 5.
Slonaker had another appointment with Kennedy on
December 20, 2017, regarding his #18 tooth and consented to the
dentist’s decision to put in a new filling. ECF No. 36-1, at ¶
6; ECF No. 36-7 (Dental Progress Note documenting the December
20, 2017 appointment). On March 29, 2018, Kennedy determined
that Slonaker’s #11 tooth had “severe occlusion attrition [that]
induced irrev. pulpitis.”5 ECF No. 36-8 (Dental Progress Note
documenting the March 29, 2018 appointment). She extracted the
#11 tooth on April 9, 2018, but states in her affidavit that
4 Periodontitis, also known as gum disease, “is a serious gum
infection that damages the soft tissue and, without treatment,
can destroy the bone that supports your teeth.” Periodontitis:
Symptoms and Causes, Mayo Clinic,
https://www.mayoclinic.org/diseases-
conditions/periodontitis/symptoms-causes/syc-20354473 (last
visited February 1, 2021).
5 “Pulpitis is inflammation of the dental pulp resulting
from untreated caries, trauma, or multiple restorations.”
Bernard J. Hennesy, Pulpitis, Merck Manual Professional Version,
https://www.merckmanuals.com/professional/dental-
disorders/common-dental-disorders/pulpitis (last visited
February 1, 2021). Irreversible pulpitis involves, “[s]welling
inside the rigid encasement of the dentin [that] compromises
circulation, making the pulp necrotic, which predisposes to
infection.” Id.
8
“[e]ven at this time, it was still not my dental recommendation
that Plaintiff should get dentures.” ECF No. 36-1, at ¶ 7;
accord ECF No. 36-9 (Dental Progress Note documenting the April
9, 2018 appointment).
The notes from a June 13, 2018 appointment indicate
that Slonaker complained of pain in his #5 tooth and that
Kennedy determined extraction to be necessary due to, “severe
attrition and mod/ distal bone loss.” ECF No. 36-10 (Dental
Progress Note documenting the June 13, 2018 appointment); accord
ECF No. 36-1, at ¶ 8. Kennedy advised Slonaker, who had again
requested dentures, that “nothing had significantly changed
since March 8, 2017, to warrant getting dentures” and extracted
the #5 tooth on June 14, 2018. ECF No. 36-1, at ¶ 8; accord ECF
No. 36-10 (Dental Progress Note documenting the June 13, 2018
appointment); ECF No. 36-11 (Dental Progress Note documenting
the June 14, 2018 appointment).
On June 26, 2018, Kennedy treated Slonaker, who
complained of abscess, pain, and infection in the #5 and #6
tooth areas. ECF No. 36-12 (Dental Progress Note documenting
the June 26, 2018 appointment). Kennedy’s notes from this
appointment indicate that tooth #5, extracted on June 14, 2018,
had significant occlusion attrition “but was never ‘abscessed’
9
or otherwise actively infected.” Id. This is consistent with
the notes from the June 13, 2018 appointment inasmuch as they
indicate tooth #5 attrition and bone loss but no infection. ECF
No. 36-10. The June 26, 2018 notes also state that tooth #6
exhibited significant occlusion attrition but that the patient’s
“reports of infection [] are not assoc. with June 2018 dental
complaints.” ECF No. 36-12. She advised Slonaker that he
should consult a medical care provider, as he might have
contracted an upper respiratory infection. Id.; ECF No. 36-1,
at ¶ 9.
The June 26, 2018 notes further document that Slonaker
“became angry and disruptive by frequently interrupting [her]”
as she communicated this advice. ECF No. 36-12. He was
dismissed from the dental clinic, but he “refused to get out of
the dental chair.” Id. The notes indicate that security
noticed Slonaker’s anger and “asked if [she] was OK.” Id. When
Slonaker eventually left the dental clinic, he “threatened to
file some sort of federal lawsuit, to which [Kennedy] had no
reply.” Id.
Slonaker’s verified complaint states that he asked
Kennedy during the June 26, 2018 appointment “if there was any
possible way she would consider pulling both of my bad teeth
10
that day; seeing they were the last 2 adjacent, compromised
teeth as would both need to come out in order for a top partial
denture to be able to eventually be fitted . . . .” ECF No. 2,
at 10. After she examined his teeth, Slonaker states she told
him, “Nothing was going to happen today,” and that he responded,
“Your [sic, You’re] kidding right?” Id. According to Slonaker,
Kennedy responded, “Do you not comprehend, Do you want a
write-up for disobeying an order, Get out of my chair and office
now!”6 Id.
Slonaker was seen by PA-C Sandra May on July 2, 2018.
ECF No. 36-13 (Patient Note documenting the July 2, 2018
appointment with May). May found that Slonaker did not have an
upper respiratory infection and indicated that she would refer
him back to Kennedy for tooth pain and gum irritation. Id. The
verified complaint states that Kennedy saw Slonaker again on the
afternoon of July 2, 2018, and took four x-rays of his “exposed
root of tooth, ground down below the gum line.” ECF No. 2, at
12. Slonaker claims that Kennedy declared, “You have no
infection present, and further you and 100 inmates just like you
6 The objection to the PF&R asserts that these statements
were made during the June 13, 2018 appointment, but the verified
complaint, as well as Kennedy’s notes, indicate that they were
likely made during the June 26, 2018 appointment.
11
will not dictate as to how and when I will do my job . . . .”7
Id. Kennedy does not reference this July 2, 2018 follow-up
appointment in her affidavit but states that following the
appointment with Sandra May, “Plaintiff was not in a position
where it was advisable from a dental standpoint to get
dentures.” ECF No. 36-1, at ¶ 9. Additionally, no notes from
this July 2, 2018 dental appointment appear in the record.
The verified complaint goes on to reference a July 13,
2018 incident where Slonaker failed to notice an open cell door,
which he turned into and “sheer[ed] that last remaining top left
quadrant tooth off,” leaving “only about an eighth of an inch of
a pen[-]shaped jagged tip [with root exposed] above the gum line
remaining.” ECF No. 2, at 13 (third alteration in original).
Slonaker has provided an Inmate Medical Services Request form
documenting this incident, although the form bears no indication
from prison personnel that it was ever submitted to them. ECF
No. 2, at 20 (Inmate Medical Services Request form). No
subsequent dental records reference this incident.
7 As noted above, the objection to the PF&R indicates that
this occurred on June 13, 2018. The verified complaint states
that it occurred on July 2, 2018.
12
The plaintiff dated his verified complaint July 17,
2018, and it was filed by the Clerk on July 20, 2018. ECF No.
2. In addition to monetary compensation, the verified complaint
seeks a declaration that the acts or omissions of the defendants
violated his civil and constitutional rights. Id. at 15. As a
result of such a declaration, “Plaintiff expects a sufficient
amount of time to be allowed for his gums to properly heal and
be fitted into both upper and lower dentures as [sic, after?]
timely extraction(s) of not only his last two upper compromised
teeth, causing him much suffering, and bottom teeth also.” Id.
(second alteration in original).
According to her affidavit, Kennedy again saw the
plaintiff on July 23, 2018. ECF No. 36-2, at ¶ 10. The
affidavit and her notes indicate that she determined it
appropriate to extract the #6 and #13 teeth; however, Slonaker
requested that only one tooth be extracted at a time. Id.; ECF
No. 36-14 (Dental Progress Note documenting the July 23, 2018
appointment). Specifically, her notes document that the #6 and
#13 teeth both exhibited severe attrition that required
extraction. ECF No. 36-14. She extracted the #6 tooth on July
25, 2018, and pulled the #13 tooth on August 7, 2018. ECF No.
36-2, at ¶ 10; ECF No. 36-15 (Dental Progress Note documenting
13
the July 25, 2018 appointment); ECF No. 36-16 (Dental Progress
Note documenting the August 7, 2018 appointment).
Kennedy avers that “[a]ll of the teeth extracted from
August 22, 2017, to August 7, 2018, were Plaintiff’s top teeth.
After the #13 tooth was extracted on August 7, 2018, it was
appropriate . . . to start fitting Plaintiff for a top denture.”
Id. at ¶ 11. Kennedy further states that “Plaintiff never
exhibited any dental problems with his bottom teeth[,] and none
of his bottom teeth have needed extracted. Plaintiff has no
dental need for a bottom denture at this time.” Id. at ¶ 13.
The affidavit and notes from the August 7, 2018
appointment indicate that three months’ time was necessary for
Slonaker to heal prior to fitting the top denture. Id.; ECF No.
36-16. Kennedy affirms that Slonaker was fitted for a top
denture on November 14, 2018, which was implanted on March 13,
2019. ECF No. 36-1, at ¶ 12; see also ECF No. 36-17 (Dental
Progress Note documenting the November 14, 2018 appointment);
ECF No. 36-18 (Dental Progress Note documenting the March 13,
2019 appointment).
Kennedy affirms that she made the decision to fit the
plaintiff for a top denture before she, “was even aware that the
lawsuit had been filed.” ECF No. 36-1, at ¶ 11. Additionally,
14
Kennedy’s summons in this action was issued on April 15, 2019,
and she was served with process on May 15, 2019. ECF No. 11;
ECF No. 12. There is no indication in the record that Kennedy
had notice of the lawsuit prior to service of process. Thus,
absent any evidence to the contrary, it appears that Kennedy
made the decision to fit the top denture on August 7, 2018,
fitted the denture on November 14, 2018, and implanted the
denture on March 13, 2019, prior to learning of this action.
II.
Summary judgment is appropriate only “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). “Material” facts are those necessary to
establish the elements of a party’s cause of action. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010). A “genuine” dispute of material fact
exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party. Anderson, 477 U.S. at 248. Although the
court views the evidence in the light most favorable to the
15
nonmoving party, “that party must produce evidence that goes
beyond ‘[c]onclusory or speculative allegations’ and [must]
rel[y] on more than ‘a mere scintilla of evidence’ to withstand
summary judgment.” Hodgin v. UTC Fire & Sec. Americas Corp.,
Inc., 885 F.3d 243, 252 (4th Cir. 2018) (first alteration in
original) (quoting Thompson v. Potomac Elec. Power Co., 312 F.3d
645, 649 (4th Cir. 2002)).
III.
Kennedy argues in her brief in support of summary
judgment that summary judgment is appropriate on Slonaker’s sole
§ 1983 Eighth Amendment claim alleged against her inasmuch as,
“Plaintiff cannot set forth any evidence to support that
objectively he had an infection which required medical
treatment” on June 26, 2018, and July 2, 2018, and “Plaintiff
has presented no evidence that his bottom teeth were in a
condition to consider it a serious medical need.” ECF No. 37,
at 9-10. Kennedy therein further asserts that she rendered
appropriate treatment when extracting six top teeth and filling
the #18 tooth; her treatment of the patient did not fall below
the standard of care of a practicing dentist; and the
plaintiff’s claim amounts to “nothing more [than] a disagreement
between [Slonaker and] the treatment plan set forth by” her.
16
Id. at 10-11.
In addition to the issues raised in the objection
noted above, namely, the June 13, 2018 decision to only pull the
#5 tooth on June 14, 2018 and the comments made by Kennedy,
Slonaker responds that the dentist’s reasoning was
“questionable” insofar as she decided to extract teeth
one-by-one to preserve the remaining teeth and their associated
bones rather than pull them all and fit him for dentures. ECF
No. 41, at 2. He claims that Kennedy herself ground down the
#11 tooth “to the gum line,” which required its extraction after
its roots shifted. Id. He emphasizes that the #5 and #6 teeth
should have been extracted together inasmuch as they were both
infected and concedes that “there may not be genuine issues of
material fact” if the dentist had agreed to pull both of them.
Id. at 3. Slonaker also acknowledges his request that Kennedy
pull the #6 and #13 teeth on different dates, which he believed
to be necessary so that he could continue to chew with one side
of his mouth. Id.
“In order to state a cognizable claim for denial of
medical care under the Eighth Amendment, an inmate must allege
facts sufficient to demonstrate a deliberate indifference to a
serious medical need.” Estelle v. Gamble, 429 U.S. 97, 104
17
(1976). To succeed on such a claim, a plaintiff must offer
“proof that the medical need in question is objectively
‘serious,’ and that the defendant acted with subjective
indifference, meaning he or she ‘kn[ew] of and disregard[ed] an
excessive risk to inmate health or safety.’” Adams v. Ferguson,
884 F.3d 219, 227 (4th Cir. 2018) (alterations in original)
(quoting Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)).
A “serious medical need” is “one that has been
diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.” Id. (quoting Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). Further, the
subjective mental state required of a deliberately indifferent
actor is “more than mere negligence.” Farmer, 511 U.S. at 835.
It is instead “somewhere between negligence and purpose or
knowledge: namely, recklessness of the subjective type used in
criminal law.” Brice v. Virginia Beach Corr. Ctr., 58 F.3d 101,
105 (4th Cir. 1995) (citing Farmer, 511 U.S. at 835). This
means that:
a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from
18
which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.
Farmer, 511 U.S. at 837. “Under this standard, mere
‘[d]isagreements between an inmate and a physician over the
inmate’s proper medical care’ are not actionable absent
exceptional circumstances.” Scinto v. Stansbury, 841 F.3d 219,
226-27 (4th Cir. 2016) (alteration in original) (quoting Wright
v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)); accord Russell
v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (“Questions of
medical judgment are not subject to judicial review.”).
The PF&R concluded that “Slonaker has presented no
concrete evidence of an actual infection that Kennedy failed to
treat, and he otherwise simply disagrees with her treatment
plan.” ECF No. 43, at 9. After considering the evidence in the
record, including that contained in the verified complaint, the
court agrees.
Slonaker’s primary contention throughout this action
and the events pertaining thereto is that Kennedy should have
pulled all of his teeth and fitted dentures as early as March 8,
2017. On March 14, 2017, he filed a grievance to that effect,
requesting that “badly worn/all teeth” be extracted such that he
could get dentures. He repeatedly requested such treatment
19
during appointments over the following seventeen months. The
verified complaint likewise indicates that he sought top and
lower dentures as of the date he filed this action, July, 17,
2018.
Kennedy has offered testimony that no dentures were
dentally advisable prior to August 7, 2018, the date she pulled
the #13 tooth, whereupon she began the process of fitting the
patient for a top denture. She has additionally stated that
Slonaker has no dental problems with his bottom teeth and that a
bottom denture is not advisable.
And although Kennedy’s notes indicate that Slonaker
threatened a lawsuit during the June 26, 2018 appointment, she
attests that she made the decision to fit the plaintiff for a
top denture prior to learning of this action. She also avers
that the top denture was completed on March 13, 2019, which is
prior to the date she was served with process, May 15, 2019. As
noted, the evidence in the record suggests that Kennedy decided
to implant a top denture, fitted the denture, and implanted the
denture prior to learning of this action.
Insofar as his Eighth Amendment claim concerns the
general decision to continue to extract top teeth one-by-one to
attempt to preserve what teeth were left, the court concludes
20
that Slonaker’s arguments are nothing more than disagreements
with Kennedy’s medical treatment plan, which is not cognizable
under § 1983 absent exceptional circumstances not present in
this action. Additionally, there was plainly no Eighth
Amendment violation for her decision to refuse a bottom denture
inasmuch as she has averred that his bottom teeth have never
exhibited dental problems and there is no evidence that
contradicts this statement.
To the extent Slonaker contends that Kennedy was
deliberately indifferent to his serious medical needs when she
refused to pull the #6 tooth along with the #5 tooth even though
both were infected, the court finds this argument to be without
merit. There is no evidence that either tooth was infected.
Kennedy did not find an infection of the #6 tooth on June 13,
2018 or June 14, 2018, when she treated the #5 tooth. In fact,
neither her affidavit, nor her notes from appointments indicate
that Slonaker even complained of pain associated with the #6
tooth on those dates. She likewise found no infection when she
examined the #6 tooth on June 26, 2018.
And although Kennedy determined that it was necessary
to extract the #5 tooth on June 14, 2018, her notes from the
June 26, 2018 appointment state that the #5 tooth was never
21
“actively infected.” ECF No. 36-12. This is consistent with her
June 13, 2018 notes that only document attrition and bone loss
relating to the #5 tooth. Moreover, Sandra May found no upper
respiratory infection that could have potentially related to
mouth pain when she examined the plaintiff on July 2, 2018.
It is evident from the affidavit of the defendant as
well as the dental and medical records relating to Slonaker’s
care that Kennedy exercised her professional judgment as a
dentist when she treated the plaintiff for pain resulting from
the #5 and #6 teeth. There is no indication that she was
deliberately indifferent to his serious medical needs concerning
these teeth or any others. Moreover, the record does not
suggest that her decisions fell below a professional standard of
care. But even if they did, such malpractice is not sufficient
for an Eighth Amendment deliberate indifference claim under §
1983. See Estelle, 420 U.S. at 106 (“Medical malpractice does
not become a constitutional violation merely because the victim
is a prisoner.”).
The court also concludes that the statements made by
Kennedy to Slonaker on June 26, 2018, and July 2, 2018, as
presented in the verified complaint, do not support his § 1983
Eighth Amendment claim absent any other indication in the record
22
that the dentist was deliberately indifferent to his serious
medical needs. “Mere threats or verbal abuse by prison
officials, without more, do not state a cognizable claim under §
1983.” Henslee v. Lewis, 153 F. App’x 178, 180 (4th Cir. 2005)
(citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979));
accord Johnson v. Lanham, 9 F.3d 1543, 1993 WL 469160, at *3
(4th Cir. Nov. 15, 1993) (unpublished table opinion) (same). It
is clear, at least with regard to the June 26, 2018 appointment,
that Kennedy chastised Slonaker after he was disruptive and
refused to leave her dental chair. Notwithstanding this point,
none of her comments would support his § 1983 claim without a
separate indication that she was deliberately indifferent to his
serious medical needs. Indeed, the record reflects that she
routinely provided dental care according to her professional
judgment from March 8, 2017 through March 13, 2019, and
implanted a top denture when she determined such treatment to be
dentally advisable.
Finally, the court finds that supplementation of the
record with the plaintiff’s entire medical file is not
necessary. Slonaker has not asserted by “affidavit or
declaration that, for specified reasons, [he] cannot present
facts essential to justify [his] opposition” to Kennedy’s motion
23
for summary judgment (or that of Jividen and Ames) as provided
for by Federal Rule of Procedure 56(d). Moreover, he has not
pointed to any specific missing documents that could support the
merits of his action.
Inasmuch as the plaintiff has failed to offer more
than a scintilla of evidence to support his Eighth Amendment §
1983 claim alleged against Kennedy, the court finds that she is
entitled to judgment as a matter of law. Since Jividen and Ames
are also entitled to summary judgment, a final judgment shall
issue and this action will be dismissed.
IV. Conclusion
Accordingly, it is ORDERED as follows:
1. That Slonaker’s objection (ECF No. 47) and
amended objection (ECF No. 48) to the November 23, 2020 PF&R be,
and they hereby are, GRANTED to the extent they seek review of
the evidence in the record, including the verified complaint.
The objection and amended objection are otherwise OVERRULED.
2. That the November 23, 2020 PF&R (ECF No. 43) be,
and it hereby is, ADOPTED and INCORPORATED to the extent it
recommends that summary judgment be entered in favor of Kennedy,
Jividen, and Ames.
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3. That Kennedy’s motion for summary judgment (ECF
No. 36) be, and it hereby is, GRANTED.
4, That Jividen and Ames’ motion for summary
judgment (ECF No. 38) be, and it hereby is, GRANTED.
5. That all claims having been resolved, this action
be, and it hereby is, DISMISSED. The Clerk is directed to
remove this action from the court’s docket.
The Clerk is directed to forward copies of this
memorandum opinion and order to the plaintiff, all counsel of
record, and the United States Magistrate Judge.
ENTER: February 9, 2021
De,
Jo . Copenhaver, Jr.
Senior United States District Judge
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