Edminster v. Dedeke

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         Pro se 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. Rule 7.4(b).

         The 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. 2005).

         I. Background

         Plaintiff 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.

         On May 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.

         Plaintiff 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.

         On 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.

         II. Legal Standards

         Summary 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.

         In 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.

         III. Analysis

         Defendants move for summary judgment arguing the uncontroverted facts establish that defendants did not violate plaintiff's constitutional rights while he was incarcerated.

         Plaintiff first claims his Eighth and Fourteenth Amendment rights were violated as a result of “deliberate indifference” and “cruel and unusual punishment, ” arguing ...