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Ditter v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

May 11, 2018

DAVID DITTER, Plaintiff,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT FRAKES, in his individual & official capacity, RANDY T. KOHL, MD, in his individual & official capacity, CORRECT CARE SOLUTIONS, RONALD OGDEN, DDS, in his individual & official capacity, and LISA MATHEWS, in her individual & official capacity, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, 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.

         Plaintiff 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.[1]Pending before the court are Defendants' Motions for Summary Judgment. (Filing No. 81; Filing No. 84.)

         I. STANDARD OF REVIEW

         Summary 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).

         In 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).

         A party 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, 158-60 (1970).

         II. UNDISPUTED MATERIAL FACTS

         A. Facts Regarding NDCS Defendants

         1. Plaintiff David Ditter was, at all times relevant to this action, an inmate at the TSCI. (Filing No. 1 at CM/ECF p. 1.)

         2. Defendant Dr. Randy Kohl was, at times relevant to this case, the Medical Director for the NDCS. (Filing No. 1 at CM/ECF p. 8.)

         3. Defendant Lisa Mathews was, at times relevant to this case, the ADA Coordinator for the NDCS. (Filing No. 1 at CM/ECF p. 8.)

         4. Defendant Scott Frakes was, at times relevant to this case, the Director of the NDCS. (Filing No. 1 at CM/ECF p. 8.)

         5. 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 p. 4.)

         6. In 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.)

         7. 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.)[2]

         8. 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.)

         9. 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.)

         10. Dr. 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.)

         11. In Dr. Sasek's opinion, dental implants are not a medical necessity in Plaintiff's case. (Filing No. 83-3, Aff. Dr. Jamie Sasek ¶ 5.)

         12. Dr. 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.)

         13. Dr. 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.)

         14. Dr. 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.)

         15. 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.)

         16. On 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.)

         17. Dr. 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 ...


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