Submitted: March 13, 2019
from United States District Court for the District of
Minnesota - Minneapolis
GRUENDER, BENTON, and GRASZ, Circuit Judges.
BENTON, CIRCUIT JUDGE.
pretrial detainee, Marvin Orlando Johnson suffered from
multiple cavities and tooth pain. He sued Dr. Todd A.
Leonard, Gwen Blossom, Michelle Skroch, and Dr. John M.
Collier under 42 U.S.C. § 1983 for depriving him of
dental care in violation of the Eighth Amendment. Collier
initially did not file a responsive pleading. The Clerk of
the Court entered default against him. The district
court set the default aside, later granting
summary judgment to the defendants. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
was a pretrial detainee from November 2014 to June 2016. The
jail contracted with MEND Correctional Care for on-site
medical care and coordination of dental services. The jail
also contracted with Dr. Collier for dental care. If an
inmate complained of dental problems, MEND protocol
instructed its employees to look for signs of infection or
other medical complications, prescribe medications as needed,
and refer inmates to Collier if appropriate. Collier could
see patients only if MEND placed them on his dental list. The
jail required Collier to obtain authorization from the U.S.
Marshals Service before providing certain services, including
fillings and extractions.
November 20, 2014, Johnson filed his first sick-call request
complaining of tooth pain and difficulty eating and drinking.
MEND examined him and gave him Dentek-a pain reliever for
teeth-to use for 14 days. Two days later, he filed a
sick-call request for pain. MEND told him to continue using
Dentek as prescribed for the full 14 days. One week later, he
complained again of pain. MEND forwarded his note to Collier.
A few days later, Johnson filed a sick-call request for
constant and horrible pain. MEND gave him Dentek and
Ibuprofen, placing him on Collier's list. On December 6,
Collier examined Johnson and put a temporary filling in tooth
#13. Johnson complained at the end of December that the
filling hurt and asked to see Collier. MEND gave him Dentek
and Ibuprofen, but noted no bleeding, swelling, drainage, or
other signs of infection. On January 19, 2015, the Marshals
Service approved a temporary filling or extraction.
two weeks, Collier put a temporary filling in tooth #2.
Though the filling in tooth #13 was "still in and
okay," Collier said he would submit a prior
authorization request to the Marshals Service for a permanent
filling. The Marshals Service approved the request on March
24. According to Johnson, Collier also said he would request
to permanently fill tooth #2. MEND placed Johnson on the
dental list again in late April after he complained of pain
in his filling. Collier put a second temporary filling in a
different spot in tooth #2 and extracted tooth #18. Johnson
claims Collier said he would submit a prior authorization
request for a permanent filling in tooth #15.
submitted three more sick requests in May and early June. He
reported "10/10" pain. Finding no signs of
infection, MEND gave him Dentek and Ibuprofen, placing him on
the dental list. In mid-June, Collier put a temporary filling
in tooth #30. Three days later, Johnson complained of
moderate pain and difficulty eating and sleeping. MEND gave
him Dentek and Ibuprofen. Johnson soon complained of pain
again. MEND placed him on the dental list. Collier cleaned
out and replaced the temporary filling in tooth #13 in July.
According to Johnson, Collier said he had not received
approval yet to permanently fill tooth #13. A little over a
month later, Collier put a temporary filling in tooth #3.
Johnson claims Collier said he would submit a request to
permanently fill that tooth.
early September, Johnson said part of tooth #2 broke in half.
Later that month, he complained about pain and "how his
dental work is not being approved." MEND prescribed
Tylenol and referred him to Collier. Johnson refused
treatment to extract tooth #2 in October, but continued to
complain of pain the next month. MEND gave him Dentek while
he waited to see Collier, but noted they would take no
further action because he refused the extraction. Johnson
made another sick-call request at the end of December. MEND
placed him on Collier's dental list, telling Johnson he
could get Ibuprofen or Tylenol from the medication cart.
January 9, 2016, Collier put a permanent filling in tooth
#13. The same day, Johnson filed two sick-calls requesting
permanent fillings in teeth #2, 3, 15, and 30. He filed a
formal grievance two days later. The next day, MEND contacted
Collier. He reported that these teeth did not require further
treatment "until [Johnson] reaches his final
destination." Johnson complained again about the same
teeth. MEND examined him, placed him on the dental list, and
gave him Dentek. After Collier saw him on January 23, Johnson
filed several sick-call requests for pain. MEND relayed
Johnson's concerns to Collier. He informed MEND that
tooth #2 was completed, #15 had no cavity, and that he would
request authorization to put permanent fillings in teeth #3
and #30. MEND noted on February 1 that it had seen a request
for tooth #30 but not a request for tooth #3, despite its
inquiries to Collier about his intent to submit requests for
February 6, Collier put a permanent filling in tooth #30.
Johnson claims Collier also re-diagnosed him with cavities in
several teeth and suggested a permanent filling for tooth #3.
When Johnson soon complained about "excruciating"
pain and swelling, MEND examined him (noting no swelling),
gave him over-the-counter medications, and spoke to Collier
about his concerns. Collier reported: teeth #13 and 30 were
complete; he recommended extracting tooth #2, but Johnson
refused; he indicated he would request approval for permanent
fillings for teeth #3, 5, and 14. (Requests for #3, 5, and 14
are not in the record.) From late February to early March,
Johnson made six more sick-call requests. MEND told him each
time that it forwarded his concerns to Collier. On March 19,
Collier put a filling in tooth #3 and replaced the temporary
filling in tooth #2. He says tooth #3 was a permanent
filling, but his notes from this visit are not in the record.
In April, Johnson complained about teeth #5, 9, and 14. MEND
examined him and forwarded his concerns to Collier, who
treated Johnson on April 30. Collier claims he put permanent
fillings in teeth #5 and 14 then, but his notes are not in
February 2016, Johnson sued Dr. Collier and three MEND
providers under 42 U.S.C. § 1983 for acting with
deliberate indifference to his cavities and tooth pain in
violation of the Eighth Amendment. The complaint misspelled
Collier's business as Koala Dental, instead of K.O.A.L.A.
Dental Care II, LLC. When served, Collier told the Marshals
Service of the spelling error. Collier claims he thought he
would be re-served. He did not respond to the original
complaint. The Clerk of the Court entered default against
Collier. Learning of the entry of default from his insurance
company, he sought counsel and filed a motion to set ...