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Nash v. Connections CSP, Inc.

United States District Court, D. Delaware

July 19, 2018

ANTHONY A. NASH, Plaintiff,
CONNECTIONS CSP, INC., et al., Defendants.



         The 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.)


         Nash 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.)[1] The defendant Marc Richman, Ph.D. ("Dr. Richman"), [2] 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.)

         Dr. 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.)

         A 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.)

         Nash's 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.)

         According 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.)

         The 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")[3] 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.)

         On 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"), [4] the 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.)

         Nash 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.)

         Nash 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")[5]triaged the sick call on November 8, 2015. (Id. at39, 121.) On November 10, 2015, Tarlan Arshian, D.M.D. ("Dr. Arshian")[6] 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.)

         On July 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")[7] 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. (Id.)

         When 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 canals." (Id.)

         On 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.)

         On 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.)

         On 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, Ex. F.)

         White 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 migraines. (Id.)

         On 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.)

         Nash 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.)

         On June 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")[8] 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.)

         On 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.)

         On 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.)

         The 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.)

         Nash 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.[9] (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;[10] and (3) they are immune from suit by reason of qualified immunity.[11](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.)


         Under 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 (2000).

         To 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 ...

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