United States District Court, D. Delaware
ANTHONY A. NASH, Plaintiff,
CONNECTIONS CSP, INC., et al., Defendants.
plaintiff, Anthony A. Nash ("Nash"), an inmate at
the Howard R. Young Correctional Institution
("HRYO"), Wilmington, Delaware, filed this lawsuit
pursuant to 42 U.S.C. § 1983. (D.I. 3.) Nash appears pro
se. The operative fifth amended complaint is found
at D.I. 83. Presently before the court are motions for
summary judgment filed by the parties. (D.I. 163, 189, 196,
243, 249, 263.)
PROCEDURAL AND FACTUAL BACKGROUND
raises claims regarding dental care provided him at HRYCI.
(D.I. 83.) Nash was booked into the HRYCI on May 4, 2014.
(D.I. 250, Ex. B at 614.) The defendant Marc Richman, Ph.D.
("Dr. Richman"),  is the Bureau Chief of
Correctional Healthcare Services for the Delaware Department
of Correction ("DOC") and the defendant Elliott
Clark ("Clark") is a correctional officer at HRYCI.
(D.I. 245, D.I. 246.) The defendant Connections Community
Support Programs, Inc. ("CCSP") became the medical
care contractor for the DOC on July 1, 2014. (D.I. 246.) The
defendant Mikelle Phillips, M.D. ("Dr. Phillips) is
employed by CCSP as the medical director at HRYCI. (D.I. 250,
Ex. F.) The defendant Mitchell A. White, P.A.
("White"), also employed by CCSP, is a physician
assistant at HRYCI who provided care to Nash in response to
sick calls and during regular chronic care appointments.
(Id.) The defendant Christine Claudio
("Claudio") is CCSP's health services
administrator, and she oversees the medical care operations
at all DOC facilities. (Id. at Ex. G.) The defendant
R.N. Tracey Crews ("Crews") is CCSP's health
services administrator at HRYCI and, in that position,
oversees the medical care operations at HRYCI. (Id.
at Ex. H.) The defendant Karen Lewis ("Lewis) is
CCSP's medical administrative assistant at HRYCI.
(Id. at Ex. I.) She performs administrative tasks,
but she does not provide medical or dental services.
(Id.) The defendant Dr. Taurence Bishop ("Dr.
Bishop"), a dentist, is a CCSP employee who provides
dental care on an as needed basis. (Id. at Ex. C.)
The defendant Jason Justison, D.M.D. ("Dr.
Justison"), provided dental treatment to Nash. (D.I. 196
at 3.) The defendant Mary Stewart ("Stewart") is
employed by CCSP as a dental assistant at HRYCI, and her
responsibilities include scheduling dental sick calls and
providing assistance to dentists while they treat patients.
(D.I. 250, Ex. E.)
Richman does not maintain an on-site presence at any of the
DOC's prisons and does not routinely direct or supervise
day-to-day medical treatment of inmates. (D.I. 246.) He is
responsible for overseeing implementation of policies for
correctional healthcare services. This includes polices that
address access to dental care and services. (Id.)
Emergency dental care services are available to all
offenders. (D.I. 246, Ex. A at 300.) Examples of emergency
dental care include:
post-operative uncontrolled bleeding, facial edema secondary
to a dental infection that is of a life- threatening nature
or causing facial deformity, fracture of the mandible,
maxilla or zygomatic arch, avulsed dentition, an extremely
painful condition that is non-responsive to the
implementation of dental treatment guidelines, intraoral
lacerations that require suturing to include the vermillion
border of the lips, fractured dentition with pulp exposure,
acute dental abscess, oral pathological condition that may
severely compromise the general health of the inmate, acute
necrotizing ulcerative gingivitis, purulent drainage or
discharge and a fractured tooth at the gum line.
(D.I. 246, Ex. A at 300-301.) The policy for dental
restorations and extractions provides that "[e]very
effort shall be made by the medical services contract
provider dentist to restore a tooth with a restoration,
rather than an extraction. The restorability of a tooth shall
be determined by the medical services contract provider
dentist and documented on a dental treatment plan."
(Id. at 301). The policy for root canal therapy
provides that "[e]ndodontics (root canal therapy)... is
not routinely available within DDOC but may be considered on
a case by case basis. The tooth must be functional, have a
good/excellent prognosis and be restorable without a crown.
The medical services contract provider dentist shall
determine if root canal therapy is an appropriate treatment
option for the patient." (Id.)
little over a week after his arrival at HRYCI, on May 12,
2014, Nash underwent an initial physical exam that revealed
teeth abnormalities and "poor dentition."
(Id. at Ex. A at 21, 58.) Nash was housed on Pod 2J.
(D.I. 259, ex. A.) On October 23, 2014, Nash submitted a sick
call slip requesting dental treatment and complaining he had
an abscessed tooth and needed it removed or antibiotics.
(D.I. 250, Ex. A at 79.) The sick call slip was received by
the medical unit on October 26, 2014. (Id.)
sworn opposition states that on October 24, 2014, he
"went to Clark to call medical." (D.L 259, ¶
5.) The Fifth Amended Complaint alleges that Clark refused to
call the infirmary on October 27, 2014. (D.L 83, ¶ 3.)
The affidavit of Nash's former cellmate, Malik Moss
("Moss") states that he lived with Nash
"around" October 24, 2014 through October 26, 2016
and he witnessed Nash "go up to the bubble to ask CO.
Clark if he'll call medical for him. He did not."
(Id. at Ex. A.) The affidavit does not provide the
date when Moss witnessed this exchange. (Id.)
to Clark, he does not recall any interaction with Nash while
working at HRYCI in October 2014. (D.I. 245.) The duty roster
indicates that Clark worked on Pod 2J on October 12, 17, 19,
24, 26, and 31, 2014. (Id.) According to Clark, if
an inmate discusses a medical complaint, he advises the
inmate to file a sick call slip. (Id.) Clark states,
"as a correctional officer, [he has] no involvement in
the medical care provided to inmates," and he "is
not responsible for scheduling an inmate's medical or
dental appointments." (Id.) Clark states that
he would contact medical staff if an inmate presented with an
obvious, emergent and serious medical issue. (Id.)
sick call was triaged on October 26, 2014 as routine, but
medical records state that by the next morning, October 27,
2014, Nash had developed swelling, and he was taken to the
infirmary. (Id. at 20, 38, 79.) Nash states that the
swelling occurred well before October 27, 2014. (D.I. 259 at
2.) Dr. Michael Matthias ("Dr.
Matthias") ordered antibiotics, x-rays, admitted Nash
to the infirmary, and advised Nash that, because of an oral
infection, it was necessary to extract tooth 8. (D.I. 250,
Ex. A at 20.) The next day, Dr. Bishop evaluated Nash,
determined the antibiotics were ineffective, and extracted
teeth 6 and 8. (Id. at Ex. A at 19-20; Ex. C.) Prior
to extracting the teeth, Dr. Bishop discussed with Nash the
risks of the procedures and treatment alternatives and
obtained Nash's consent to perform the procedure.
(Id. at Ex. A at 20; Ex. C.) Nash remained in the
infirmary overnight and received pain medication and
antibiotics. (D.I. 250, Ex. A at 19.)
April 1, 2015, Dr. Bishop performed an initial oral
examination of Nash. (D.I. 150, Ex. A at 17-18.) As explained
by Jennifer Lenz, D.M.D. ("Dr. Lenz"),
dental policy in effect at the time provided that all inmates
receive an initial oral examination within their first year
of their incarceration. (Id. at Ex. D.) Upon
examination, Dr. Bishop found that Nash had "poor oral
hygiene" and a "high caries rate" and
recommended to Nash that he maintain better oral hygiene.
(Id. at Ex. A at 17-18; Ex. C.)
was required to submit a sick call slip for him to receive a
comprehensive oral exam for the development of a dental
treatment plan. (Id. at Ex. C.) Nash submitted a
routine dental sick call on May 12, 2015, and requested
placement on the list for cleanings and fillings.
(Id. at Ex. A at 16, 92.) According to Dr. Lenz, an
inmate must have a comprehensive oral exam before he can be
scheduled for restorations and cleanings. (Id. at
Ex. D.) Dr. Lenz performed a comprehensive oral exam on Nash
on May 19, 2015. (Id. at Ex. A at 16.) At the time,
Nash did not have any complaints, although Dr. Lenz observed
significant decay on several of his teeth and noted that Nash
had decay on at least two surfaces of thirteen of his teeth.
(Id. at Ex. D.) According to Dr. Lenz, Nash's
dental condition indicated that he was a poor dentition, but
it was not an emergent situation that required immediate
attention. (Id.) Dr. Lenz made a request for
Nash's placement on the list for restorations for the
teeth with cavities. (Id.) According to Dr. Lenz,
once the treatment plan was complete, Nash would be placed on
the list for cleaning as requested in his sick call slip.
(Id. at Ex. A at 16; Ex. D.)
submitted a sick call slip on November 7, 2015, complaining
of a toothache and an abscess. (Id. at Ex. A at
121.) Medical notes indicate that R.N. Mitsie Robinson
("Robinson")triaged the sick call on November 8, 2015.
(Id. at39, 121.) On November 10, 2015, Tarlan
Arshian, D.M.D. ("Dr. Arshian") examined Nash
complaints, saw no symptoms of an infection, and ordered
x-rays. (Id. at 14.) The examination revealed that
tooth 21 had a large cavity that was non-restorable, and Dr.
Arshian placed Nash on the extraction list. (Id.) A
few days later, on November 14, 2015, Dr. Bishop determined
that teeth 21 and 22 also needed extraction because of
non-restorable cavities. (Id. at Ex. A at 13; Ex.
C.) According to Dr. Bishop, in accordance with his routine
practice, he discussed the risks and treatment alternatives
before Nash consented to the procedure. (Id.) Dental
records for that date state, "informed consent
obtained." (Id. at Ex. A at 13.)
3, 2016, Nash submitted a sick call slip complaining that he
had not received restorations, and he believed two of his
teeth were infected. (Id. at Ex. A at 147.) On July
6, 2016, R.N. Penniah Ndirangu
("Ndirangu") responded to the sick call. (Id.
at 40.) Nash denied pain when he was seen but stated that he
frequently experienced shooting pain. (Id. at 7,
40.) Ndirangu did not see any signs of an infection, and
offered Nash pain medication which he refused. (Id.
at 7.) A follow-up visit with dental was scheduled.
Dr. Justison examined Nash on July 13, 2016, he observed
"widespread decay," especially at teeth 15 and 19.
(Id. at 6.) Diagnosis was irreversible pulpitis with
partial necrotic pulp #15 and #19, caries, and generalized
mild periodontal disease. (Id.) Dr. Justison
prescribed an antibiotic and informed Nash of treatment
options that included extractions. (Id.) Nash chose
the extraction option. (Id.) According to Nash, at
no time did Dr. Justison or any other dentist at HRYCI
discuss any other treatment available other than extraction.
(D.I. 211, Ex. A.) Nash states that every single dentist and
dental assistant told him, "we do not do root
August 12, 2016, White evaluated Nash following Nash's
off-site medical appointment. (Id. at 4.) Nash told
White he experienced pain when chewing and was scheduled with
dental but had not yet been evaluated. (Id.)
White's notes indicate that Nash was scheduled for a
dental evaluation. (Id.)
August 13, 2016, Nash submitted a sick call slip asking for
the next available dentist visit complaining that he could
not eat or sleep, was in pain, and suspected the
"infection must have come back." (Id. at
164.) Nash was triaged on August 15, 2016, in response to his
complaints. (Id. at 37, 164). Records indicate that
Nash was seen by medical personnel on August 16 and 27 as
well as September 5, 9, 15, and 29, but the records do not
indicate Nash had dental complaints or sought dental care.
(Id. at 3, 4 165.)
October 4, 2016, the court received Nash's complaint,
dated September 28, 2016. (D.I. 3.) On October 5, 2016, Nash
submitted a sick call slip complaining that he had been
scheduled for extractions in July 2016, the extractions had
not yet taken place, and he was "exhausted from being in
pain all the time." (Id. at 167.) The next day
Nash submitted a sick call slip with complaints of nausea
caused by his chronic migraines. (Id. at 169.) White
evaluated Nash on October 7, 2016, noting that Nash had
"poor dentition" with visible cavities on his upper
and lower molars, but no signs of an oral infection.
(Id. at 3.) White prescribed penicillin
prophylactically as a bridge to Nash's dental appointment
scheduled for October 10, 2016. (Id. at Ex. A at 3;
Ex. F.) After White ordered the penicillin, he canceled the
order because he was notified that Nash was allergic to the
drug. (Id. at Ex. F.) Medical notes indicate Nash
has a drug allergy, but Nash states he is not allergic to
penicillin. (D.I. 250, Ex. A at 6, 1033; D.I. 262, ¶ 4.)
According to White, since Nash did not have any signs of
infection, White exercised his clinical judgment and did not
order an alternative antibiotic. (D.I. 250, Ex. A at 6, 1033,
also ordered Reglan to treat Nash's nausea caused by
migraines. (Id.) After White ordered the drug, he
was counseled by Dr. Phillips that based upon Nash's
clinical presentation, the nominal benefits of Reglan were
outweighed by potential risks as indicated by medically-based
evidence. (Id. at Ex. F.) White chose to cancel the
Reglan, based upon the medication administration report that
Nash was prescribed another type of pain relief used to treat
October 10, 2016, Dr. Matthias evaluated Nash when
correctional officers brought Nash to the dental department
following Nash's complaints of tooth pain and bleeding.
(Id. at Ex. A at 3.) Dr. Matthias' notes
indicate that Nash was scheduled for dental procedures that
afternoon and, later in the day, Dr. Justison extracted teeth
14 and 19 due to severe decay and fractured teeth.
(Id. at 2-3.) The same day, Nash submitted a sick
call slip for partial dentures because two more teeth had
been pulled. (Id. at 171.) Stewart advised Nash he
was not eligible for dentures at that time because his
treatment plan for restorations was not complete.
(Id. at Ex. E.)
was seen by medical on February 27, 2017, with complaints of
dental related pain. (Id. at Ex. A at 898.) The
right lateral edge of a tooth was discolored but there were
no symptoms of an infection. (Id.) Nash was
prescribed pain medication, and it was noted that Nash had a
scheduled dental appointment. (Id.) On March 3,
2017, Dr. Matthias restored teeth 9, 10, and 11.
(Id. at 897.)
15, 2017, Nash submitted a sick call slip with complaints of
tooth pain. (Id. at 906.) On June 21, 2017, R.N.
John Bollati ("Bollati") evaluated Nash and observed
decay of a tooth on the front side with no symptoms of oral
infection and scheduled Nash for the dental sick call.
(Id. at 880.) Dr. Arshian evaluated Nash on June 27,
2017, ordered x-rays, advised Nash that he was already on the
list for fillings, explained that dental did "not
perform root canals," and determined that Nash had large
cavities that might require an extraction. (Id. at
879.) The dental note reads, "Pt has no questions or
concerns and pt left satisfied." (Id.)
October 18, 2017, Nash submitted a grievance complaining that
he had not received restorations despite multiple sick call
slips. (Id. at 1044, 1050) The investigative report
of the grievance, dated October 23, 2017, found that Nash had
seen dental on numerous occasions, had three fillings, four
extractions, and that he continued to be scheduled for
additional dental work. (Id. at 1044.)
December 11, 2017, Dr. Matthias saw Nash to determine
"what needs to be addressed." (Id. at
866.) Dr. Matthias concluded that fillings were appropriate
for Nash's smaller cavities on teeth 11, 12, 13, and 20,
and that the larger cavity on tooth 28 might require an
extraction if the tooth caused toothache. (Id. at
866.) Tooth 28 was filled during Nash's December 29, 2017
dental visit. (Id. at 865.)
Fifth Amended Complaint raises claims for medical/dental
negligence (Counts I, III, V) against Dr. Bishop, Dr.
Justison, and CCSP; negligence per se (Count VI) against Dr.
Richman; intentional infliction of emotional distress (Count
III) against Dr. Justison; and lack of informed consent
(Counts II, IV) against Dr. Justison and Dr. Bishop. (D.I.
83.) The Fifth Amended Complaint also invokes 42 U.S.C.
§ 1983 and alleges violations of the Eighth and
Fourteenth Amendments to the United States Constitution.
(Id. at 2, 6.)
moves for summary judgment against White and Dr. Justison on
the grounds that there are no genuine issues of material fact
that they were deliberately indifferent to his serious
medical needs. (D.I. 163, 189.) Nash also moves for summary
judgment against the other medical defendants. (D.I. 263.) The
State defendants Dr. Richman and Clark move for summary
judgment on the grounds that: (1) Nash failed to come forth
with evidence that his medical treatment violated his
constitutional rights; (2) Nash failed to prove any state law
claim against the State defendants; and (3) they are immune
from suit by reason of qualified immunity.(D.I. 243,
244.) Dr. Justison moves for summary judgment on the grounds
that Nash has failed to provide any evidence to support any
of his claims and, therefore, summary judgment is appropriate
as a matter of law. (D.I. 196.) The other medical defendants
move for summary judgment on the grounds that: (1) Nash
failed to produce sufficient evidence for a reasonable jury
to conclude that constitutional violations occurred; and (2)
the dental negligence claims against Dr. Bishop and CCSP
warrant dismissal because Nash failed to identify a qualified
expert to support the claims as is required under Delaware
law. (D.I. 249, 250.)
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure,
"[t]he court shall grant 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." The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 585-86 (1986). An assertion that a fact cannot
be-or, alternatively, is-genuinely disputed must be supported
either by "citing to particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials,"
or by "showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the
moving party has carried its burden, the nonmovant must then
"come forward with specific facts showing that there is
a genuine issue for trial." Matsushita, 475
U.S. at 587 (internal quotation marks omitted). The court
will "draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
defeat a motion for summary judgment, the nonmoving party
must "do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586; see also Podobnik
v. U.S. Postal Serv.,409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must present
more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue")
(internal quotation marks omitted). The "mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc.,477 U.S. 242, 247-48 (1986).
"If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted." Id. at 249-50 (internal citations
omitted); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (stating entry of summary judgment is
mandated "against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial"). Thus, the "mere
existence of a scintilla of evidence" in support of the
nonmoving party's position is insufficient to defeat a