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Gordon v. Brown

United States District Court, W.D. Wisconsin

November 18, 2019




         Pro se plaintiff Samterious Gordon is proceeding on claims that staff at New Lisbon Correctional Institution violated his rights under the Eighth Amendment and state law by failing to provide him adequate dental care. In particular, he contends that security staff (defendants Joseph Fraundorf, Nicholas Sieber and Drew Cross) refused to contact dental or health services despite knowing he was in pain; health services nursing staff (defendants Koreen Frisk, Bridget Rink, Nicole Krahenbuhl, Jamie Gohde, Jamie Barker and Lynn Dobbert) failed to properly triage two dental service requests that he filed; and dental services staff (defendants Dr. Michael Brown, Dr. Mann Lee and Morghan Gilson Noth) failed to provide timely dental services.[1] Before the court is defendants' motion for summary judgment. Dkt. #41.

         In response to defendants' motion, plaintiff has agreed that his claims against Frisk, Rink and Kahenbuhl should be dismissed, dkt. #54 at 1, so I will not discuss those defendants further. As for the other defendants, plaintiff has failed to present evidence that Brown, Gohde, Barker, Lee, Noth and Sieber violated his rights under the Eighth Amendment or state law. Therefore, I will grant summary judgment in favor of those defendants. However, there is a genuine dispute of material fact as to whether defendants Dobbert, Fraundorf and Cross acted with deliberate indifference or negligence to his serious dental needs. Therefore, I will deny the motion for summary judgment as to Dobbert, Fraundorf and Cross.

         From the parties' proposed findings of fact, I find the following facts to be material and undisputed unless otherwise noted.


         Plaintiff Samterious Gordon was an inmate at New Lisbon Correctional Institution at all times relevant to this lawsuit. Defendant Dr. Mann Lee is the dental director for the Department of Corrections Bureau of Health Services. He makes all staffing and hiring decisions for dentists, dental assistants and dental hygienists, though the number of staff he is able to hire is determined by the Division of Adult Institutions Bureau of Health Services budget. As the dental director, Lee does not triage or assess individual care unless it is brought to his attention after the fact through an inmate complaint.

         The remaining defendants worked at New Lisbon Correctional Institution during the relevant time period. Dr. Michael Brown is a dentist; Morghan Gilson Noth is a dental assistant; Lynn Dobbert and Jamie Gohde were nurse clinicians; Drew Cross was a correctional sergeant; Joseph Fraundorf and Nicholas Sieber were correctional officers; and Jamie Barker was the interim health services unit manager from February 2018 to May 2018. Barker was not involved with staffing of dentists or dental hygienists.

         On November 7, 2016, a dentist at Dodge Correctional Institution advised plaintiff that he needed a filling or extraction of an upper right tooth and that he should submit a dental service request for the work. Plaintiff did not submit any dental service requests for the tooth until January 19, 2018, after he had been transferred to New Lisbon.

         A few days before January 19, 2019, plaintiff's tooth starting hurting, his mouth was bleeding, he had headaches and he could not eat or sleep. On January 19, plaintiff submitted a dental service request stating that he had been “having trouble” with his back tooth since “biting a penny” at the county jail, that he was in pain and that he needed someone to look at it as soon as possible. Dkt. #57-1.

         On January 20, 2018, defendant Nurse Dobbert was the only health services staff member working. She retrieved plaintiff's dental service request, date-stamped it and triaged it. When nursing staff triages dental service requests, they review the requests for urgent or emergent dental problems. If the request is not urgent or emergent, nursing staff forwards the request to the dentist. Dobbert reviewed plaintiff's request, decided it was not urgent or emergent and forwarded it to the dentist. She did not contact plaintiff or offer him any pain medication.

         After a dental service request is forwarded, the dentist determines if and when a patient needs to be seen by dental services. In January 2019, a dentist was at New Lisbon between one and three days a week. Under Division of Adult Institutions policy 500.40.02, only dentists and registered nurses may determine if and when an inmate requires dental services. If the dentist is out, a nurse must triage requests for service. Dental assistants and hygienists are not permitted to triage dental service requests. Dkt. #42-2. They also are not permitted to prescribe medication.

         Defendant Brown received and triaged plaintiff's dental service request on January 22, 2018. Brown determined that the request did not state an urgent need because plaintiff was referring to a county jail incident that occurred before 2016 when Dodge Correctional Institution provided a comprehensive intake dental exam and took x-rays. In addition, there were no notes in his dental record indicating that plaintiff had reported pain in his back tooth or requested treatment in 2016 or 2017. On January 22, Brown notified plaintiff that he would be placed on the routine waiting list, with an approximate wait time of 12 months.

         Plaintiff saw a primary physician on February 2, 2018 for other medical problems, and he did not complain of tooth pain. If he had complained of tooth pain, he would have been referred directly to dental services and likely would have been seen the same day.

         On February 13, 2018, part of plaintiff's tooth broke. (Plaintiff says he showed his broken tooth to correctional officers Sieber, Cross and Fraundorf, told them he was in pain and asked them to contact health services for him, but they refused to do so. Plaintiff says defendants responded by stating that they were not dentists and that there was no tooth fairy at the prison. Defendants deny that plaintiff showed ...

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