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Johnson v. Leonard

United States Court of Appeals, Eighth Circuit

July 3, 2019

Marvin Orlando Johnson Plaintiff- Appellant
v.
Doctor Todd A. Leonard, Mend Correctional Care; Gwen Blossom, Medical Provider of Mend Correctional Care; Michelle Skroch, Nursing Director of Mend Correctional Care; Doctor John M. Collier, DDS, of Koala Dental, in their official and individual capacities Defendants - Appellees

          Submitted: March 13, 2019

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         As a 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[1] set the default aside, later granting summary judgment to the defendants. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         Johnson 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.

         On 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.

         Within 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.

         Johnson 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.

         In 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.

         On 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 both teeth.

         On 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 the record.

         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 ...


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