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Fraley v. Tranbarger

United States District Court, D. Kansas

February 7, 2019

MARK FRALEY, Plaintiff,
KAYLA TRANBARGER, et al., Defendants.



         This case comes before the court on Defendants' motion for summary judgment. (Doc. 100.) The motion has been fully briefed and is ripe for decision. (Docs. 101, 121, 122, 123.) Defendants' motion is GRANTED for the reasons stated herein.

         I. Procedural History

         On August 1, 2018, Defendants moved for summary judgment. (Doc. 100.) As required by Local Rule 56.1(f), Defendants provided Plaintiff, who is proceeding pro se, with the required notice regarding motions for summary judgment. (Doc. 102.) The notice was mailed to Plaintiff's address of record. (Doc. 102.) Plaintiff's original response deadline was August 22, 2018. Plaintiff timely filed a motion for an extension. (Doc. 105.) The court granted the extension and granted three additional extensions of time. (Docs. 111, 114, 119.) Plaintiff's deadline to file his response was December 21, 2018. Plaintiff failed to file a response by that date. On January 3, Plaintiff filed a motion for excusable neglect and filed his response to the motion. (Docs. 121, 122.) Plaintiff contends that he missed the deadline due to his legal material being lost or taken during his transfer to a different facility.[1] (Doc. 121.) Defendants oppose Plaintiff's motion. (Doc. 123.)

         The court notes at the outset that Plaintiff has been informed on more than one occasion that he is at a facility that has mandatory electronic court filing for prisoner's cases, yet Plaintiff continues to mail his pleadings in to the clerk's office.[2] Plaintiff fails to give any reason why he could not have timely moved for an extension of time after the alleged theft of his materials. The court could deny an extension on that basis. Nevertheless, the court will grant Plaintiff's motion as Plaintiff has attested that his materials were lost or stolen and the court has no reason to dispute Plaintiff's representations.

         Plaintiff's response, however, fails to comply with Local Rule 56.1(f) as Plaintiff has not set forth a response to Defendants' statement of facts nor has Plaintiff set forth his own statement of facts. Plaintiff has submitted an affidavit in support of his motion for excusable neglect in which he attempts to controvert some of Defendants' facts in support of its motion for summary judgment. (Doc. 121.) Plaintiff has also submitted exhibits in his response. (Doc. 122.) The court has no obligation to search Plaintiff's exhibits for facts that are not set forth in a statement of facts. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“The court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.”) The court will review the facts asserted in Plaintiff's affidavit in determining the uncontroverted facts and whether Plaintiff has shown a dispute of material fact in this case. The court will not review the exhibits attached to Plaintiff's response for additional facts beyond those contained in Plaintiff's affidavit. Id. Any statement of fact that has not been controverted by Plaintiff's affidavit is deemed to be admitted. D. Kan. Rule 7.4. Also, the court will only consider facts based on personal knowledge or supported by the exhibits to the extent Plaintiff has cited an exhibit in his affidavit. Conclusory allegations are not sufficient to create a dispute as to an issue of material fact. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         Plaintiff also asserts that this court should grant him relief under Rule 56(f) and allow more time for discovery. To provide the relief requested, Plaintiff must

file an affidavit that explains why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts. A party may not invoke Rule 56(f) by simply stating that discovery is incomplete but must state with specificity how the additional material will rebut the summary judgment motion.

Libertarian Party of NM v. Herrera, 506 F.3d 1303, 1308-09 (10th Cir. 2007) (internal citations omitted.

         Plaintiff has failed to meet the specificity requirement as he has not provided an affidavit identifying facts that are not available and would rebut the motion for summary judgment before the court. Therefore, Plaintiff's request for additional discovery under Rule 56(f) is denied.

         II. Uncontroverted Facts[3]

         In July 2014, Plaintiff was confined at Larned Correctional Mental Facility (“Larned”). As a confined prisoner, Plaintiff could receive medical care upon request. Prisoners who request medical evaluation and/or treatment for non-urgent conditions will not be assessed unless they submit a Health Services Request (“HSR”) form and they are then assessed a fee of $2.00. (Docs. 96 at 2; 101 at 2-3.)

         Defendant Michele Kennedy (formerly Sterns) was working as a nurse on the evening of July 4, 2014. Kennedy does not recall seeing Plaintiff on that date. The medical records do not show that Plaintiff was seen by Kennedy on July 4. Plaintiff has submitted affidavits stating that his dental bridge was broken off after he was punched on July 4, 2014. An affidavit by Archie Dooley states that Plaintiff was assisted to the medical clinic by an unknown guard. (Doc. 122 at 2.) Kennedy has submitted an affidavit regarding her practices and what actions she would have taken had Plaintiff presented with particular symptoms on July 4. (Doc. 101, Exh. 10.) If Kennedy saw Plaintiff on July 4 and determined that his condition required urgent attention, she would not have required the submission of an HSR and she would have called the dentist or a higher-level provider and noted the same in the medical records. Also, if Plaintiff had presented with significant active bleeding or he was in significant distress, Kennedy would have assessed Plaintiff without requiring an HSR and would have entered a progress note regarding treatment. If Kennedy had determined that Plaintiff's condition was not urgent, then she would have required the submission of an HSR so that she could proceed with an examination.[4] If Plaintiff had declined to submit an HSR, which was common due to prisoners not wanting to incur a fee, Kennedy would have had Plaintiff fill out a Refusal of Treatment form. There is no record of a Refusal of Treatment or any progress notes regarding July 4.[5] (Docs. 96 at 2-3; 101 at 2-4.)

         Plaintiff submitted an HSR regarding his teeth on July 6, 2014. He stated as follows: “The recent loss of my top front cantilever bridge is drastically affecting my daily life in that I can hardly eat a thing, and now spit flies out when I engage in speaking with others.” Kennedy reviewed the HSR on July 6 at 11:30 p.m. Kennedy determined that Plaintiff should be seen by the nurse and placed his name on the sick call list. Because Plaintiff's HSR did not describe an urgent condition, Kennedy determined that he did not need to be seen on an urgent basis. (Doc. 101 at 4.)

         On July 7, Fraley saw Defendant Erica Brown, RN. Plaintiff was assessed a $2.00 fee for his visit with Brown. Brown's progress notes state that Plaintiff's “top bridge fell out while eating popcorn and accidently chewed a kernel and popped his bridge.” (Doc. 101, Exh. 1 at 64.) Brown noted that there was “no swelling or redness” and that Plaintiff had “alterations in comfort due to Dental Pain.” (Id.) Dislodgement of a bridge does not mean that a patient will necessarily experience pain. Brown recommended that Plaintiff alternatively apply a warm wash cloth and ice pack to the area and use warm salt water rinses. Brown instructed Plaintiff to return to the clinic if he later developed swelling in his face, jaw, or neck. Plaintiff informed Brown that he was scared to eat with other inmates and wanted an excused absence from work because he felt weak. Brown encouraged Plaintiff to eat and go to work but instructed him to speak to his unit leader if he had further concerns about going to work. Brown did not assess Plaintiff to be experiencing any significant pain. Brown did not seek an assessment for Plaintiff from a higher-level provider because she did not find it to be medically indicated. Brown did not contact Defendant Kayla Tranbarger or Defendant Diane Haines regarding Plaintiff's dental conditions. Brown's recommendations were those recommended by established nursing protocols. Brown did not prescribe Tylenol because Plaintiff was already taking Tylenol. Brown referred Plaintiff to the dental clinic on a non-urgent basis and delivered a copy of the July 6, 2014, HSR to the dental clinic. (Doc. 101 at 5-7.)

         During July 7 to 11, Plaintiff claims that he showed certain medical staff, who were working on the “med line, ” his dental condition and made complaints of dental pain. Staff members who work on the med line pass medication to prisoners who are not allowed to keep their medications on their person. Plaintiff failed to identify any individuals to whom he made complaints.[6] The following Defendants could have been present at the med lines during July 7 to July 11: Erica Brown, Michele Kennedy (Sterns), Patricia Amaya, Amanda Mead (Auble), Pam Barker, Samantha Brox, Kathy Crosswhite, Susan Mathes, Deb McAlister, Donalda Parker, Tina DiMarzo (Stanley), and Jeanne Young. None of these Defendants recall an encounter with Plaintiff at the med line during July 7 to 11, 2014. The medical records do not reflect that Plaintiff complained of dental pain at the med line. Moreover, Plaintiff did not need to use the med line for his prescriptions as all of his prescriptions, including Tylenol, where “KOP” or “keep on person” and Plaintiff was allowed to self-medicate. The medical records do not indicate that Plaintiff was provided mediation during this time period nor do they indicate that any of these Defendants, other than Brown, had an encounter with Plaintiff. All Defendants who could have been on the med line submitted affidavits setting forth their routine practices. If Plaintiff would have presented in an urgent condition, or was in significant distress, the med line Defendants would have acted to address Plaintiff's condition. Had Plaintiff complained but did not have an urgent condition or was not in significant distress, Defendants would have instructed Plaintiff to submit an HSR regarding his condition. (Doc. 101 at 8-10.)

         Fraley had been scheduled to see Defendant Sean Fay, DDS, on July 14. Plaintiff, however, was placed in segregation on July 11. On July 11, Defendant Donalda Parker, RN, met with Plaintiff and cleared him to be placed in segregation. Parker did not note any dental complaints by Plaintiff. While Plaintiff was in segregation, he could not self-medicate and was given medications by several staff members, including Amaya, DiMarzo and Crosswhite. None of these Defendants recall complaints of dental pain or signs of distress. If this had occurred, Defendants would have noted it in the medical records. On July 14, Fraley was seen in segregation by Elona Revers, LCPC, for a behavioral health visit. She noted his mood and affect were good and he had no mental health concerns. The medical record does not indicate that Plaintiff expressed any dental complaint. (Doc. 101 at 11-13.)

         Plaintiff was not taken to his appointment with Dr. Fay on July 14. Dr. Fay entered a progress note on July 14, which noted that Plaintiff had been transferred to the central unit and his appointment would need to be rescheduled. The next dental clinic when Dr. Fay could see Plaintiff was on July 21. After a review of the medical records, Dr. Fay stated that Plaintiff's dental condition did not require the staff to contact him on an urgent basis. Plaintiff did not have an urgent dental condition and it was appropriate to schedule Plaintiff on the regular clinic schedule. (Doc. 101 at 12-13.)

         On July 17, Plaintiff was transferred from Larned to Hutchinson Correctional Institution (“HCI”). Plaintiff was seen at HCI for an intake interview. Plaintiff was then transferred to Winfield Correction Institution (“Winfield”) on July 21. On July 21, Plaintiff was seen by Defendant Reginna Strobel, RN. Strobel noted Plaintiff's broken dental bridge and referred Plaintiff to the dentist. On July 22, Plaintiff was seen by Defendant Rodger Maechtlen, DDS. Plaintiff informed Dr. Maechtlen that his implant was broken. Dr. Maechtlen performed x-rays, which showed that Plaintiff did not have a previous root canal or implant. Dr. Maechtlen noted that a bridge was detached between teeth numbers 7 and 9 and only the roots of those teeth remained. Dr. Maechtlen recommended extracting teeth numbers 7 and 9 and the preparation of a partial denture, after the extractions had time to heal. Dr. Maechtlen also noted that an alveolar procedure, which involves removing bone from the mouth, might be required in order to complete the partial denture. The partial denture was not a permanent prosthesis but would be removable and would have improved appearance and chewing. (Doc. 101 at 14.)

         Plaintiff informed Dr. Maechtlen that he wanted a fixed prosthesis or his bridge reattached. Dr. Maechtlen explained he could not reattach the bridge because there was insufficient crown remaining on teeth numbers 7 and 9. With respect to a fixed prosthesis, the standard of care did not require this treatment which necessitates extensive restorative procedures that are not authorized in the prison because they are considered cosmetic.[7] Dr. Maechtlen informed Plaintiff that his recommendations of extraction and bone removal could limit later options for cosmetic procedures if Plaintiff wanted to pursue those after his release. Plaintiff was informed that the treatment could be performed at a later date and that Plaintiff should let the dental department know if he wanted to move forward with treatment. Plaintiff left his visit with Dr. Maechtlen without accepting or rejecting his recommendations. No. future appointment was made. Dr. Maechtlen determined that it was reasonable for Plaintiff to reject or defer his decision due to the fact that Plaintiff had reported that he was not in pain and Dr. Maechtlen did not observe any caries. (Doc. 101 at 14-15.)

         On July 28, Plaintiff was seen by Rita Gumm, APRN, for a gastrointestinal complaint. The medical record does not indicate that Plaintiff made a dental complaint. On October 6, Plaintiff submitted a grievance and complained about his lack of dental treatment. Plaintiff claimed that he had not eaten in three months and had substantial pain. He indicated that he objected to Dr. Maechtlen's recommendations and that Dr. Maechtlen should provide root canals and posts to reattach his bridge. Plaintiff requested a second opinion by an outside dentist. (Doc. 101 at 15-16.)

         Plaintiff's grievance was reviewed by Strobel. Strobel determined that the medical records did not indicate that Plaintiff filed any HSRs at Winfield regarding his dental care. Additionally, Strobel determined that Plaintiff's recorded weights did not show a significant weight loss. Strobel spoke with Dr. Maechtlen who explained his recommendations and confirmed that Plaintiff's condition does not interfere with eating. Strobel met with Plaintiff on October 9. During that meeting, Plaintiff continued to claim that he was entitled to the restorative dental services that he desired. Strobel did not observe any evidence of weight loss or pain during her visit with Plaintiff. Strobel provided a written response to Plaintiff's grievance stating that Plaintiff had been provided with treatment options and had not accepted treatment. Additionally, Strobel stated that she would request that Plaintiff be provided with more Tylenol for his use and that he should submit a medical request for alternative pain medication if that was not sufficient. (Doc. 101 at 16-17.)

         On October 18, Plaintiff submitted a HSR requesting extraction of his two teeth. Additionally, he stated that he was in severe pain and the treatment had been “mandated” in July. Plaintiff was referred to the dentist. On October 21, Plaintiff signed a consent form and Dr. Maechtlen extracted teeth numbers 7 and 9. The record reflects that Plaintiff declined other treatment. Dr. Maechtlen prescribed ibuprofen for 5 days. On October 28, Plaintiff complained about dental pain in tooth number 10 and was seen by a member of the nursing staff. Tylenol was ...

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