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Bey v. Haines

United States District Court, W.D. Wisconsin

September 30, 2016


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Robert L. Collins Bey, a prisoner currently housed at the Wisconsin Secure Program Facility (WSPF), brings Eighth Amendment deliberate indifference and state law negligence claims regarding defendant prison officials' alleged failure to provide him with adequate dental care. He alleges that prison staff left serious dental problems untreated for unreasonably long periods, including a delay of eight years in providing him with a replacement for a broken partial denture. The evidence shows that Collins Bey was subjected to long delays in receiving dental care. But the fault lies not with the dentists who treated him. The problem is the state's prison dental care system, which relies on part-time dentists who may not have the time to serve all the dental needs of inmates.

         Several motions are before the court. Collins Bey has filed a series of preliminary motions, all of which I will deny. Defendants have filed a motion for summary judgment, which I will grant regarding Collins Bey's claims for damages against defendants in their individual capacities.

         But I will deny defendants' motion as it pertains to Collins Bey's claim for injunctive relief against defendants in their official capacities because the summary judgment materials raise questions about the state's policy on staffing the WSPF dental unit. I will set a deadline for defendants to file a new summary judgment motion, if they so choose, so that the parties may more fully address this issue before trial.


         In a February 5, 2016, order, I addressed Collins Bey's motion for extension of his legal loan, Dkt. 101, in which he stated that without legal loan funds, he would not be able to pay for postage or other materials he needed to submit filings with the court. I stated as follows:

Based on the analysis in Ripp [v. Nickel, 838 F.Supp.2d 861, 865 (W.D. Wis. 2012), in which this court discussed provision of legal materials to prisoners], it is likely that the state must provide plaintiff with legal materials, whether through the legal loan mechanism or otherwise. But there may be no need for a court order mandating the provision of materials because the issue may be moot; I suspect that plaintiff may have new loan funds available to him with the advent of the new calendar year. I will have defendants show cause why I should not order the provision of funds.

Dkt. 106, at 4. Defendants responded, explaining that Collins Bey was approved for a new $50 legal loan at the beginning of 2016. This has sufficed, as Collins Bey has produced voluminous summary judgment opposition materials. I will deny his motion for extension of legal loan funds as moot.

         Regarding those voluminous summary judgment opposition materials, Collins Bey asks for leave to file an oversized brief and have it electronically served upon defendants. Dkt. 112. This motion is unnecessary because this court has no local rule limiting brief length, and defendants have received his materials electronically under the court's service agreement with the Wisconsin Department of Justice.

         Collins Bey has renewed his motion for the court's assistance in recruiting counsel or for appointment of an expert witness, Dkt. 111. So far, Collins Bey has done a good job of presenting his Eighth Amendment case. I understand well the difficulties facing a pro se plaintiff in litigating medical care claims, especially claims of medical malpractice. But I will deny Collins Bey's motion, even though it means that his medical malpractice claims will fail. I already recruited counsel for Collins Bey, but he harassed his attorneys, so I allowed them to withdraw. I declined to assist him further, unless he can provide evidence showing that he is in immediate need of dental care that prison officials are refusing to provide. See Dkt. 62, 106. He has not made this showing. Rather, in his most recent filings, Collins Bey suggests that he has finally received the partial denture he long sought, and is receiving treatment for gum disease he believes was caused by the deprivations at issue in this case. At this point, I will proceed to consider defendants' summary judgment motion and Collins Bey's pro se response.

         But Collins Bey has raised serious issues about the dental care system in Wisconsin's prisons, which affect not only him, but other inmates. Accordingly, I will revisit the issue of appointing counsel after I receive defendant's response to this order as it relates to the staffing of the dental unit at WSPF.


         Unless otherwise indicated, the following facts are undisputed.[1]

         Plaintiff Robert Collins Bey is an inmate in the custody of the Wisconsin Department of Corrections (DOC) currently incarcerated at the Wisconsin Secure Program Facility. During the events at issue during this lawsuit, he spent time at both WSPF and the Columbia Correctional Institution.

         In 1992, Collins Bey began wearing dentures “to aid with chewing food and to terminate perpetuating sore and bleeding gums that were often painful and disallow for food consumption that led to weight loss and constant stomach pains from hunger due to being unable to select a more softer diet.” Dkt. 113, at 2. The partial dentures broke in 2007.

         Collins Bey was at WSPF at that point. He made a series of dental service requests (DSR) about his broken dentures and a broken filling. He made requests to defendant WSPF dentist Thomas Boston in April and May 2007. Boston placed Collins Bey on the “routine” wait list, because he did not see these needs as an emergency. While Boston was the dentist at WSPF, he worked only six hours a week there.

         Defendant dentist James Wommack replaced Boston as the WSPF dentist sometime in summer 2007. Collins Bey submitted two more DSRs in July 2007. Wommack saw Collins Bey on July 26. Wommack examined Collins Bey, had X-rays taken, and filled tooth #2. He told Collins Bey that he was being put on the “cleaning list” and the “essential waiting list” for continuing restorative treatment. The “essential” list was for patients who had dental needs more pressing than routine care, but were not facing emergencies. Wommack told Collins Bey that repairing tooth #3 was not a priority since he had previously gotten a root canal on that tooth, which should have eliminated the possibility of further pain.

         Wommack also determined that Collins Bey's dentures were so badly broken that they needed to be replaced.[2] Wommack (as well as the other dentist defendants) concluded that Collins Bey could receive a new partial denture only after restorative care was finished and Collins Bey's mouth was healthy.

         In August 2007, Collins Bey submitted a DSR asking about the dentures, and Wommack responded that he had not forgotten about him. Wommack worked either one or two days a week at WSPF, and there was a long waiting list for dental care.

         Wommack next saw Collins Bey in June 2008. Wommack does not specifically remember why there was such a long period of time between appointments, but he notes that there was a “considerable” waiting list. Wommack saw Collins Bey for what Wommack terms an “emergency exam, ” saying that that type of exam is usually performed when a patient complains of pain. Wommack took X-rays and concluded that teeth #3, #6, #11, #12, and #29 had decay and that #15 had a defective filling. Wommack filled teeth #3 and #12. Collins Bey told Wommack that he wanted to wait to have #15 restored.

         Wommack saw Collins Bey again on August 15, 2008, for an exam and more X-rays. Wommack thought that an area on tooth #6 “looked suspicious” and “made a plan to look at that area more closely.” He concluded that #11 and #29 needed crowns and that #15 needed a new filling. Wommack filled #15 and told Collins Bey to submit a DSR for more treatment.

         At some point after this, defendant James Thorpe replaced Wommack as the WSPF dentist. In late October 2009, Collins Bey wrote a DSR stating that he had severe pain coming from the right side of his mouth, where defendant Wommack had filled three of his teeth. Although his contemporaneous DSR does not mention a filling, he stated in a later grievance that one of his fillings had fallen out. Collins Bey stated that the acetaminophen he had been given did little to dull the pain. A couple days later, a nurse told Collins Bey that he would be seen that day, but he was later informed that due to a “mix up, ” the dentist was not scheduled to work that day. Collins Bey filed another DSR about the severe pain. A dental hygienist responded, stating that “you are on the list to be seen the next time we have a dentist in the institution” and that he should make do with the medication provided by nurses. Dkt. 94-1, at 18.

         Defendant Thorpe saw Collins Bey on November 17, 2009, took X-rays, discovered a cavity in tooth #29, and filled it. Thorpe did not treat tooth #3, even though it was broken and jagged below the gum line, telling Collins Bey that it would not cause him pain because of his previous root canal there.

         In late November 2009, Collins Bey filed a grievance encompassing much of the dental care discussed above. Complaint examiner (and non-party) Ellen Ray investigated the grievance by contacting defendant Mary Miller, the Health Services Unit manager. Miller told Ray about Collins Bey's history of dental problems and described the several different appointments with dentists discussed above. Ray recommended dismissing the grievance because the medical history showed that defendant dentists were not ignoring Collins Bey and because Ray arguably did not have the authority to countermand the medical decisions of dentists.

         Defendant Cynthia Thorpe reviewed Collins Bey's petition and dismissed it.[3] Collins Bey went on to appeal the decision to the corrections complaint examiner and the office of the secretary, but he lost both of those appeals.

         Almost two years later, in August 2011 (Collins Bey had been transferred to CCI by then), Collins Bey submitted a DSR stating that he needed a filling repaired, he had a tooth that had broken down to the gum line, his gums were sore and bleeding, and he had been in constant pain the last three years because of an inability to eat food without his dentures. Defendant dentist William Giswold told Collins Bey that he was being placed on the ...

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