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Stang v. United States

United States District Court, D. Oregon, Portland Division

January 31, 2018

JOE DEE STANG, Plaintiff,
UNITED STATES OF AMERICA; RYAN HUNT former DMD F.C.I. Sheridan; and JOHN KELSCH, DMD F.C.I. Sheridan, Defendants.


          Youlee Yim You, United States Magistrate Judge

         Pro se plaintiff, Joe Dee Stang (“Stang”) filed this civil rights complaint against the United States of America (“United States”) and Dr. Ryan Hunt (“Dr. Hunt”) and Dr. John Kelsch (“Dr. Kelsch”), two dentists at the Federal Correctional Institution in Sheridan, Oregon (“FCI Sheridan”).[1] Stang asserts two claims based on the defendants' alleged delays and negligence in providing dental treatment, specifically, failure to provide a mouth guard for his bruxism (i.e., teeth grinding). He asserts (1) a Bivens[2] claim against Drs. Kelsch and Hunt under the Eighth Amendment, and (2) a negligence claim against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. Stang seeks $50, 000.00 in damages “to cover the cost of replacing his fractured teeth with permanent dental implants.” Am. Compl. ¶¶ 24, 35, 37, ECF #31.

         This court has jurisdiction over Stang's claims under 28 U.S.C. §§ 1331 and 1346(b). Defendants have filed a Motion for Summary Judgment (ECF #46) against both of Stang's claims. For the reasons that follow, the motion should be granted and judgment should be entered in favor of defendants.


         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FRCP 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Newmaker v. City of Fortuna, 842 F.3d 1108, 1111 (9th Cir. 2016), cert. denied, 137 S.Ct. 2217 (2017). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).


         The following facts have been offered by the parties in relation to defendants' motion for summary judgment:

         I. Bureau of Prisons Dental Treatment and Stang's Initial Evaluation

         At all relevant times, the United States Bureau of Prisons (“BOP”) offered dental services to FCI Sheridan inmates under Program Statement 6400.02, Dental Services. ECF #47-3.

         Stang began serving a federal sentence in the United States Penitentiary in Pine Knot, Kentucky (“McCreary”) on March 1, 2012. Decl. of Joe Dee Stang (“Stang Decl.”) ¶ 1, ECF #58. On March 6, 2012, during an initial dental health history screening, Stang reported “clenching or grinding” his teeth, and BOP dental staff noted that he had eight missing teeth. ECF #47-1, at 2, 4-5. On March 5, 2012, Stang requested to have some of his teeth filled, and BOP staff placed Stang's name on the National Routine Care Waitlist (“NRC Waitlist”) a week later, on March 12, 2012. ECF #47-2, at 1. The NRC Waitlist places inmates on a list for non-emergency care in chronological order by date of the initial request for care. Decl. of Ryan Hunt (“Hunt Decl.”) ¶ 8, ECF #48.

         Shortly after being admitted to BOP facilities, inmates receive an initial examination, such as the one provided to Stang. Id. ¶ 6. Thereafter, inmates can access either emergency or non-emergency dental care. Id. At FCI Sheridan, emergency dental care is available around the clock to treat the most serious dental issues, such as traumatic injuries, acute infections, and severe dental pain. Id. ¶ 7; see also ECF #47-3, at 11-12 (BOP Program Statement P6400.02(8)(d)(1)). During normal work hours, BOP dental staff provides emergency care via “dental sick call.” ECF #48, ¶ 7. Inmates must sign up in person for dental sick call and identify their chief complaint. They then receive treatment via triage based on need. Id.

         Non-emergency dental care is available at BOP facilities by request, subject to availability, and covers things such as dental hygiene, fillings, and prosthesis fabrication. ECF #47-3, at 13 (BOP Program Statement P6400.02(8)(d)(2)). Such care is managed through the NRC Waitlist and, when an inmate is called off of the list, the BOP first provides a comprehensive treatment planning examination. Hunt Decl. ¶ 8, ECF #48. The waiting list for such “routine” care is lengthy and may exceed three years. Id.; see alsoDecl. of Janice Kim (“Kim Decl.”) ¶ 18, ECF #50 (noting Stang's entry on the NRC Waitlist in 2012 and routine care appointment in December 2015); ECF #47-2, at 22 (advising Stang that, as of October 19, 2016, routine care had “about 4 years of waiting time”).

         II. Move to FCI Sheridan and 2013 Inmate Request Forms

         On June 19, 2013, Stang moved to FCI Sheridan. A few days later, on June 24, 2013, he sent an inmate request to BOP dental staff stating he had been on the NRC Waitlist for over a year to get his teeth filled, and that two of his teeth were broken and needed to be fixed. ECF #47-2, at 2. In a July 2, 2013 response, BOP staff advised Stang that he was on the wait list effective March 12, 2012, that dental staff were “working on early 2010 now, ” that he would be placed on call when his name comes up on the list, and that he should go to “dental sick call” if he had a tooth bothering him. Id. On July 31, 2013, Stang sent an inmate request stating that two of his teeth were broken or had compromised fillings, were “getting worse, ” and needed to be filled. Id. at 3. He was again advised to “[c]ome to dental sick call.” Id.

         In early September 2013, Stang sent another inmate request stating that two of his teeth had broken while in prison and asking to have those teeth filled. ECF #47-2, at 4. He was again advised he was on the Aroutine care list@ since March 12, 2012, and to go to “dental sick call” if he had issues that needed to be addressed. Id. On November 6, 2013, in response to a fourth inquiry about when he could expect to get his teeth fixed, Stang was advised: “sick call is Tuesdays and Fridays.” ECF #47-2, at 5.

         III. Dental Sick Calls with Drs. Kelsch and Hunt

         Dr. Kelsch first saw Stang on December 20, 2013, during a dental sick call visit six months after Stang arrived at FCI Sheridan. ECF #47-1, at 10-11. Stang's filling broke while he was grinding his teeth while sleeping. Stang Decl. ¶ 2, ECF #58. He presented at dental sick call “with a complaint of a broken filling and associated sensitivity in tooth #31.” ECF #47-1, at 11. Dr. Kelsch “observed significant erosion of [Stang's] teeth, likely the result of many years of grinding and poor home care.” Decl. of John Kelsch (“Kelsch Decl.”), ¶ 11 ECF #49. Stang reported dull, shooting pain at level 8 on a scale from 1-10, lasting less than 30 minutes and exacerbated by cold. ECF #47-1, at 10.

         BOP policy allows only provisional restorations (temporary fillings) to be placed during dental sick call. Kelsch Decl. ¶ 12, ECF #49; see alsoECF #47-3, at 12 (BOP Program Statement P6400.02(8)(d)(1) (stating that “placement of a definitive restoration should only be considered when a temporary restoration cannot be placed” during dental sick call “as the placement of permanent restorations requires a treatment plan”)). Accordingly, Dr. Kelsch placed a temporary filling in tooth #31, and advised Stang that a permanent filling would be placed when his name reached the top of the NRC Waitlist. Dr. Kelsch told Stang that “his sensitivity issues may persist due to his heavy bruxism.” Kelsch Decl. ¶ 12, ECF #49. Dr. Kelsch advised Stang to deal with dental sensitivity by using sensitivity toothpaste, brushing and flossing regularly, avoiding cold foods, and eating slowly to avoid cold food items contacting the surface of his teeth.[3] Id. ¶ 13; Stang Decl. ¶ 3, ECF #58.

         Dr. Kelsch did not begin fabricating a mouth guard for Stang at that time because Stang's chief complaint was a broken tooth. Kelsch Decl. ¶ 13, ECF #49. A mouth guard would not have resolved the pain caused by Stang's broken filling. Id. ¶ 14. Dr. Kelsch also does not recall Stang asking for a mouth guard, and did not view Stang's bruxism to be an urgent medical issue requiring emergency attention. Id. ¶¶ 13-14. According to Dr. Kelsch, “[b]ruxism is a relatively common condition, with many causes, symptoms, and treatment methods.” Id. ¶ 14.

         On January 15, 2014, about three weeks after seeing Dr. Kelsch, Stang sent another inmate request, again stating that his “teeth have been an issue for the past couple of years, ” that he grinds his teeth when he sleeps, and that he had been to dental sick call but was told that he could not get a mouth guard until he was seen by a dentist for routine care. ECF #47-2, at 6. Stang was advised that his “name is on the waiting list” and to “watch the call out.” Id.

         Four months later, on May 30, 2014, Stang sent an inmate request to the FCI Sheridan's warden, Marion Feather, complaining that he needed a mouth guard, but “according to dental, ” could not have one until he was seen at “routine care, ” and that he had been waiting for two years. ECF #47-2, at 7. Dr. Hunt-then FCI Sheridan's Chief Dental Officer-responded on June 4, 2014, on behalf of the warden, advising Stang to come to dental sick call “to be evaluated if a mouth ...

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