United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
an inmate at the Tecumseh State Correctional Institution
(“TSCI”), claims that the dental care he received
there constituted cruel and unusual punishment under the
Eighth and Fourteenth Amendments because Defendants were
deliberately indifferent to his serious medical needs.
Specifically, Plaintiff alleges that Defendants failed to
provide him with dental implants, ground down some of his
healthy teeth, and-as to Correct Care Solutions-maintained a
policy or custom of deliberately disregarding state
prisoners' objectively serious dental needs in order to
increase its profit.
requests injunctive and monetary relief against defendants
Nebraska Department of Correctional Services
(“NDCS”), Frakes, Kohl, and Mathews, and monetary
relief against defendants Correct Care Solutions
(“CCS”) and Ogden.Pending before the court are
Defendants' Motions for Summary Judgment. (Filing No. 81;
Filing No. 84.)
STANDARD OF REVIEW
judgment should be granted 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). It is not the court's function to
weigh evidence in the summary judgment record to determine
the truth of any factual issue, but to decide whether there
is a genuine issue for trial. Schilf v. Eli Lilly &
Co., 687 F.3d 947, 949 (8th Cir. 2012). In passing upon
a motion for summary judgment, the district court must view
the facts in the light most favorable to the party opposing
the motion. Dancy v. Hyster Co., 127 F.3d 649,
652-53 (8th Cir. 1997).
order to withstand a motion for summary judgment, the
nonmoving party must substantiate allegations with
“‘sufficient probative evidence [that] would
permit a finding in [his] favor on more than mere
speculation, conjecture, or fantasy.'” Moody v.
St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994)
(quoting Gregory v. City of Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992)). “A mere scintilla of evidence is
insufficient to avoid summary judgment.” Id.
Essentially, the test is “whether the evidence presents
a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
opposing summary judgment “may not rest upon the mere
allegation or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue
for trial, and must present affirmative evidence in order to
defeat a properly supported motion for summary
judgment.” Ingrassia v. Schafer, 825 F.3d 891,
896 (8th Cir. 2016) (quotation and citation omitted); see
also Adickes v. S. H. Kress & Co., 398 U.S. 144,
UNDISPUTED MATERIAL FACTS
Facts Regarding NDCS Defendants
Plaintiff David Ditter was, at all times relevant to this
action, an inmate at the TSCI. (Filing No. 1 at CM/ECF p. 1.)
Defendant Dr. Randy Kohl was, at times relevant to this case,
the Medical Director for the NDCS. (Filing No. 1 at CM/ECF p.
Defendant Lisa Mathews was, at times relevant to this case,
the ADA Coordinator for the NDCS. (Filing No. 1 at CM/ECF p.
Defendant Scott Frakes was, at times relevant to this case,
the Director of the NDCS. (Filing No. 1 at CM/ECF p. 8.)
Defendant Dr. Ronald Ogden, DDS, previously provided dental
services to inmates at the TSCI under contracts with CCS.
(Filing No. 85-1, Aff. Ronald Ogden, DDS ¶¶ 1-4.)
On July 20, 2014, Dr. Ogden issued Plaintiff an upper
complete denture. (Filing No. 1 at CM/ECF p. 4.) Dr. Ogden
then adjusted the denture nine different times in 2014
because it was not fitting properly. (Filing No. 1 at CM/ECF
December of 2015, defendant Dr. Randy Kohl, who at the time
was the Medical Director for the NDCS, received a letter from
Plaintiff in which Plaintiff requested dental implants.
(Filing No. 83-1, Aff. Dr. Randy Kohl ¶ 4.)
Defendant Kohl responded to Plaintiff's letter and
explained that dental implants are not covered by insurance
or Medicaid and that the NDCS does not provide them.
Defendant Kohl told Plaintiff to work with Dr. Ogden to
resolve the issues with his dentures. (Filing No. 83-1, Aff.
Dr. Randy Kohl ¶ 5.)
Defendant Kohl received a grievance from Plaintiff in
February 2016 in which Plaintiff again stated that he wanted
dental implants. Defendant Kohl looked into the matter and
determined that dental implants were not medically necessary
in Plaintiff's case. (Filing No. 83-1, Aff. Dr. Randy
Kohl ¶ 6.)
Defendant Kohl told Plaintiff to work with dental staff to
find an alternative solution to the problems with his
dentures. (Filing No. 83-1, Aff. Dr. Randy Kohl ¶ 6.)
Sasek, a licensed dentist employed by the NDCS, saw Plaintiff
on August 3, 2017, and August 10, 2017. (Filing No. 83-3,
Aff. Dr. Jamie Sasek ¶¶ 1, 4.) Dr. Sasek saw that
Plaintiff's upper denture was not fitting properly, so he
realigned the denture to see if that would help. (Filing No.
83-3, Aff. Dr. Jamie Sasek ¶ 4.)
Dr. Sasek's opinion, dental implants are not a medical
necessity in Plaintiff's case. (Filing No. 83-3, Aff. Dr.
Jamie Sasek ¶ 5.)
Wellensiek, a self-employed licensed dentist who treats
inmates at the TSCI, began providing dental services to
Plaintiff in August of 2017. (Filing No. 83-2, Aff. Dr. Todd
Wellensiek ¶¶ 1, 4.)
Wellensiek's opinion on the proper treatment for
Plaintiff is that he requires a new upper denture made, along
with a lower partial denture. (Filing No. 83-2, Aff. Dr. Todd
Wellensiek ¶ 5.)
Wellensiek does not believe that dental implants are a
medical necessity for Plaintiff. Although dental implants can
help some patients, they are generally not medically
necessary because there are other steps that can be
taken-such as realigning the dentures, creating a new
denture, or if a patient is having trouble chewing hard
foods, they could switch to a soft diet. (Filing No. 83-2,
Aff. Dr. Todd Wellensiek ¶ 6.)
Because of Plaintiff's insistence on getting dental
implants, Dr. Wellensiek recommended that he be approved for
a consultation regarding the implants, not because they were
medically necessary, but so the NDCS or an outside oral
surgeon could issue the final decision to Plaintiff. (Filing
No. 83-2, Aff. Dr. Todd Wellensiek ¶ 7.)
November 9, 2017, Plaintiff was seen by Dr. Smith, a licensed
dentist employed by the NDCS. (Filing No. 83-4, Aff. Dr. Eric
Smith ¶¶ 1, 4.)
Smith was aware that Dr. Deol had approved a consultation
between Plaintiff and an outside oral surgeon regarding
dental implants based on a recommendation by Dr. Wellensiek.
(Filing No. 83-4, Aff. Dr. Eric ...