United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
plaintiff David Bently Edminster filed suit against
Leavenworth County defendants Sheriff Dedeke, Lt. Lorenzo,
Lt. O'Brien, Sgt. Sibold, Sgt. Masoner, Sgt. Patterson,
and Major Dedeke, and defendants Advanced Correctional
Healthcare, Melissa Wardrop, and “Doctor Bob, ”
alleging violations of his Eighth and Fourteenth Amendment
rights for deliberate indifference and retaliation while he
was incarcerated in the Leavenworth County Jail. The matter
is now before the court on the Leavenworth County
defendants' Motion for Summary Judgment (Doc. 39).
Plaintiff moved for and was granted an extension of time to
file a response to the county defendants' motion. (Doc.
47). He was directed to file a response no later than
November 9, 2017. Despite the extension of time, defendant
has not responded. The court will therefore consider
defendants' motion as uncontested pursuant to D. Kan.
court, however, cannot grant defendants' motion solely
based on plaintiff's failure to respond. See Issa v.
Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003)
(“[E]ven if a plaintiff does not file a response to a
motion to dismiss for failure to state a claim, the district
court must still examine the allegations in the
plaintiff's complaint and determine whether the plaintiff
has stated a claim upon which relief can be granted.”).
The court, therefore, will review defendants' motion
while liberally interpreting the allegations in
plaintiff's pro se complaint. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
served a one-year commitment at the Leavenworth County jail
starting March 2, 2016. On March 4, 2016 plaintiff began
complaining of medical issues, specifically back pain, and
requested medication. Plaintiff was prescribed medication but
eventually his treatment was discontinued because he declined
to take the pills. On March 19, 2016, defendant Wardrop, a
nurse manager with the Leavenworth County Jail, examined
plaintiff's teeth and noted they were “bad, very
bad.” (Doc. 40-2, at 1.) Plaintiff was prescribed
medication and a peroxide rinse to help alleviate his dental
issues and eliminate infection. Plaintiff, however, refused
the peroxide rinse and it was eventually discontinued.
24, 2016, plaintiff requested to see the dentist during the
next monthly visit, but was unable to make the scheduled
appointment due to having surgery for a broken jaw.
Plaintiff's jaw surgery took place at the University of
Kansas Hospital on June 24, 2016. Doctors instructed him to
follow a soft diet for at least six weeks following surgery
and to use a post-surgical rinse to care for the incisions in
his mouth. On July 4, 2016, plaintiff began refusing his
post-surgical rinses. He was moved from a “soft
diet” to a more restrictive “dental diet”
to prevent post-surgical complications; however, he continued
to buy hard butterscotch candy from the commissary. On July
23, 2016, plaintiff was prescribed 30 days of peroxide rinses
to control his oral infection; however, he repeatedly refused
the prescribed rinses. He instead requested another dentist
visit and complained about the dental diet. Defendant Wardrop
advised him they had to continue the dental diet because
plaintiff continued to eat hard candy and was not compliant
with his rinses.
continued to see the dentist, who continued to prescribe
antibiotics and rinses to combat the ongoing infection in his
mouth. The dentist eventually recommended removal of
plaintiff's teeth. On November 29, 2016 two of
plaintiff's teeth were removed, yet he continued to
refuse peroxide rinses and other follow-up medications.
August 18, 2016, plaintiff filed the present case in this
court. In his second amended complaint, plaintiff alleges
defendants violated his Eighth and Fourteenth Amendment
rights because he was denied medical and dental care and he
accuses defendants of retaliation for denying dental visits,
denying him sweets at meals and access to sweets at the
commissary, and for “stone-wall[ing]” his
attempts to use the grievance process to address his issues.
On April 18, 2017, United States Senior District Court Judge
Sam A. Crow dismissed plaintiff's claims for injunctive
relief and claims against defendants in their official
capacities. Only the claims for damages against defendants in
their individual capacities remain.
judgment is appropriate if the moving party demonstrates that
there is “no genuine issue as to any material
fact” and that it is “entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(c). A
“genuine” factual dispute requires more than a
mere scintilla of evidence. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The party seeking
summary judgment bears the initial burden of showing the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party demonstrates an absence of evidence in support
of an element of the case, the burden then shifts to the
nonmoving party, who “must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248. The nonmoving party
“may not rest upon the mere allegations or denials of
his pleading.” Id.
making the summary judgment determination, the court must
view the evidence and reasonable inferences in the light most
favorable to the nonmoving party. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). Ultimately, the court evaluates
“whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it
is so one-sided that one party must prevail as a matter of
law.” Liberty Lobby, 477 U.S. at 252.
move for summary judgment arguing the uncontroverted facts
establish that defendants did not violate plaintiff's
constitutional rights while he was incarcerated.
first claims his Eighth and Fourteenth Amendment rights were
violated as a result of “deliberate indifference”
and “cruel and unusual punishment, ” arguing