Baughman v. Garcia
Baughman v. Garcia
Opinion of the Court
The plaintiff, Steven Kurt Baughman (SPN # 505318), is presently in custody at the Harris County Jail (the “Jail”), which is operated by the Harris County Sheriffs Office (“HCSO”) in Houston, Texas. Baughman has filed this lawsuit under 42 U.S.C. § 1983, asserting claims of inadequate medical care for type 2 diabetes, inadequate dental care, and retaliation for lodging a complaint about the level of medical and dental care that he has received. Baughman sues Harris County and the following defendants in their individual or personal capacity as supervisory officials and health care providers employed by HCSO at the Jail: (1) former Harris County Sheriff Adrian Garcia; (2) former Harris County Sheriff Ron Hickman; (3) former Executive Medical Director Dr. Michael Seale; (4) former Medical Administrator Bobby Davis; (5) Interim Executive Medical Director Dr. Marcus Guice; (6) Physician’s Assistant Sharon Lambi; (7) Dentist Dr. Edwin Chin; (8) Dentist Dr. Alan Harper; (9) Nurse Practitioner Beverly Howard; (10) Dietitian Cathy Rossi; and (11) Dietitian Renee Hinojosa.
Five of the above-referenced defendants employed at the Jail in a supervisory capacity (Dr. Seale, Dr. Guice, Davis, Lambi, and Howard) have filed a joint motion for summary judgment [Doc. # 179], arguing that they are entitled to qualified immunity from Baughman’s claims against them. The dentists (Drs. Chin and Harper) and one of the dietitians (Rossi) have filed a separate motion for summary judgment [Doc. # 183], which also raises the defense of qualified immunity. Harris County has filed a motion for summary judgment on its own behalf, arguing further that Baughman fails to make a valid claim for municipal liability under any theory against it [Doc. # 181]. Baughman has filed separate responses to these motions [Docs. # 188, # 190]. The defendants have filed several replies [Docs. # 193, # 195, # 196].
After considering all of the pleadings, the exhibits, and the applicable law, the motion for summary judgment filed by Drs. Chin and Harper is DENIED, in part, with respect to Baughman’s claim that he was denied adequate dental care for tooth decay with deliberate indifference to a serious medical need in violation of 42 U.S.C. § 1983. The motions for summary judgment are GRANTED with respect to all other claims for the reasons discussed below.
I. BACKGROUND
For the purpose of addressing the claims asserted in this case, it is helpful to first describe the plaintiff, his ailments, and the role, if any, played by the defendants in the medical and dental treatment that he has received at the Jail. Unless otherwise noted, this portion of the Court’s decision is based on facts that are undisputed by the parties. All facts are viewed in the light most favorable to the plaintiff, as non-movant.
A. The Plaintiff
Plaintiff Baughman has been in continuous custody of Harris County at the Jail since he was arrested on April 3, 2014.
When Baughman arrived at the Jail he reportedly alerted officials that he suffered from type 2 diabetes, which required insulin injections, and that he had “severe” pain due to several broken and decaying teeth.
Baughman initially filed this case pro se on November 4, 2014, against numerous defendants employed by Harris County and HCSO.
B. The Defendants
The lead defendant, Adrian Garcia, was the elected Harris County Sheriff from the time Baughman was booked into the Jail until late 2015. Ron Hickman, who was appointed to succeed Garcia as Sheriff, left the office at the end of 2016.
At the time Baughman was booked into the Jail, Dr. Seale was employed as the Executive Medical Director for the Jail’s Health Services Division.
During his tenure as Executive Medical Director, Dr. Seale oversaw all facets of the Health Services Division at the Jail, including medical, mental health, pharmacy, and laboratory operations.
As Executive Medical Director, Dr. Sea-le was responsible for ensuring that all components of the Health Services Division complied with criteria promulgated by the Texas Commission on Jail Standards (“TCJS”),' which has regulatory authority over all county jails in Texas, and for ensuring that all policies and procedures in place are consistent with applicable standards or “best practices” established by the National Commission on Correctional Health Care (“NCCHC”), which has continually accredited the Jail since 1985.
Sharon Lambi is a licensed physician’s assistant who is in charge of the Chronic Care Clinic during second shift.
The Chronic Care Clinic is charged with monitoring the blood glucose levels of diabetic detainees on a regular basis, and ensures that detainees receive routine care from the Optometry Clinic and the Dental Clinic for issues that commonly affect diabetics.
When Baughman was admitted to the Jail in April 2014, Bobby Davis was employed by HCSO as a Medical Administrator.
Rossi is a registered dietitian who shares responsibility with other medical providers for administering inmate diets.
During the time this lawsuit has been pending, Dr. Edward Chin and Dr. Alan Harper have been the only dentists employed by HCSO at the Dental Clinic, which is open between 6:00 a.m. and 2:00 p.m., Monday through Friday.
C. Allegations of Inadequate Medical Care for Diabetes
Baughman’s primary claim is that he has been denied adequate medical care in the form of blood glucose monitoring for type 2 diabetes. Type 2 diabetes is a condition in which the pancreas does not produce enough insulin, which is the hormone that regulates the level of glucose or sugar in the blood stream.
As a result of his “severe obesity,” Baughman depends on regular insulin injections to treat his type 2 diabetes.
Baughman claims that providers at the Jail are not adequately monitoring his blood sugar levels to determine whether it is too low before giving him his twice-daily dose of insulin, placing him at risk for hypoglycemia. Although a diabetic patient can typically identify whether they have signs or symptoms of low blood sugar, glucose monitoring is considered to be the “more accurate” way to determine whether blood sugar is too low before administering insulin.
To test a patient’s blood sugar the patient’s finger is pricked with a lancet device to express a small drop of blood. The small blood drop is then applied to a glucose test strip that has been inserted into a portable glucose monitor. The patient’s blood glucose at that precise time is displayed on the glucose monitor.54
This procedure for testing blood sugar, which is known as the “fingerstiek” technique, is described as “quite simple” and reportedly takes no more than two min
Medical standards of “optimal” treatment recommend that a type 2 diabetic taking insulin should have his or her blood glucose monitored at least three times a day.
At the time of his arrest, Baughman’s treating physician reportedly had prescribed fingersticks at least four times per day.
D. Allegations of Inadequate Dental Care
Baughman also contends that he has been denied adequate dental care at the Jail for severe tooth decay, which has caused him to lose several teeth. When Baughman was booked into the Jail on April 3, 2014, he reportedly had a “severe toothache” because one or more of his teeth were “broken off at the gum line” and he also had at least two painful cavities.
Jail policy states that upon intake each inmate will be given a toothbrush and toothpaste along with a copy of the Inmate Handbook, which-includes instructions on proper brushing and flossing of teeth.
On May 29, 2014, Baughman was seen in the Dental Clinic by Dr. Chin, who diagnosed “residual root tips” in two teeth (# 17 and # 19), which were extracted with Baughman’s consent.
On October 14, 2014, Baughman filed a grievance asking for the cavities in tooth # 18 and tooth # 20 to be treated with fillings, arguing that these teeth could be saved if restorative dental work were provided.
On October 23, 2014, Baughman returned to the Jail Dental Clinic and repeated his request for fillings to treat his decaying teeth (# 18 and # 20).
On April 6, 2015, Baughman returned to the Dental Clinic for an annual dental exam.
On February 19, 2016, Baughman was seen at the Dental Clinic by Dr. Harper for pain in one of his molars (# 31).
On March 8, 2016, Baughman returned to the Dental Clinic for pain in tooth # 18, which is one of the teeth that he originally sought treatment for following his arrest in April 2014.
On April 20, 2016, Baughman was seen again in the Dental Clinic for pain in tooth # 15.
Dr. Chin admitted at his deposition that, dentists at the Jail do not provide treatment for cavities, other than extraction, at County expense.
As the result of numerous extractions both in and out of the Jail, Baughman no longer has any molar teeth, meaning that
The defendants do not dispute that Baughman was not provided with “full-scale periodontal treatment,” fillings, root canals, or crowns for tooth decay and that he was not offered dentures.
E. Allegations of Retaliation
Baughman alleges that he was punished after he sent a letter to the TCJS in March 2015, objecting to the inadequate medical and dental care he had received at the Jail.
F. Defendants’ Motions
Defendants Dr. Seale, Dr. Guice, Davis, Lambí, and Howard have filed a joint motion for summary judgment, arguing that they are entitled to qualified immunity from the claims lodged against them in their individual capacity as supervisory officials.
Defendants Dr. Chin, Dr. Harper, and Rossi have filed a separate joint motion for summary judgment, arguing that Baugh-man cannot show that they violated his constitutional rights and that they are also entitled to qualified immunity as a result.
Harris County moves for summary judgment, arguing that Baughman fails to establish municipal liability by showing that an official custom, policy, or procedure was deliberately indifferent to his serious medical or dental needs.
II. STANDARD OF REVIEW
The defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Under this rule, a reviewing 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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is “material” if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id.
If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the non-movant to provide “specific facts showing the existence of a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A reviewing court “must view the evidence introduced and all factual inferences from the evidence in the light most favorable to the party opposing summary judgment[.]” Smith v. Regional Trans. Auth., 827 F.3d 412, 417 (5th Cir. 2016). The Supreme Court has particularly emphasized the importance of drawing inferences in favor of the nonmovant in cases such as this one, where individual defendants have asserted the defense of qualified immunity. See Tolan v. Cotton, - U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014).
III. ANALYSIS OF LIABILITY OF THE INDIVIDUAL DEFENDANTS
Baughman seeks monetary damages from the individual defendants in their individual or personal capacity under 42 U.S.C. § 1983, which establishes “a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” Rehberg v. Paulk, 566 U.S.
A. Qualified Immunity
Public officials acting within the scope of their authority generally are shielded from a suit for monetary damages by the doctrine of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A plaintiff seeking to overcome qualified immunity must satisfy a two-prong inquiry by showing: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). This is an “exacting standard” that protects “all but the plainly incompetent or those who knowingly violate the law.” City and County of San Francisco v. Sheehan, — U.S. -, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (citation omitted).
As this standard reflects, “[a] good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016) (internal quotation marks and citations omitted). “The plaintiff must rebut the defense by establishing that the official’s allegedly wrongful conduct violated clearly established law and that genuine issues of material fact exist regarding the reasonableness of the official’s conduct.” Id. at 654 (quoting Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008)). “To negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present ‘absolute proof,’ but must offer more than ‘mere allegations.’ ” Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).
B. Deliberate Indifference Standard
As an initial matter, Baughman’s claims that he was denied adequate medical and dental care while in Jail implicate both the Fourteenth Amendment and the Eighth Amendment to the United States Constitution. In that respect, pretrial detainees ordinarily are protected by the Due Process Clause of the Fourteenth Amendment, which dictates that “a pretrial detainee may not be punished.” Bell v. Wolfish, 441 U.S. 520, 535 n.16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Inmates who have been convicted and sentenced to imprisonment, by contrast, are protected by the Eighth Amendment, which prohibits punishment that is “cruel and unusual.” Id. The Fifth Circuit has recognized that there is no significant distinction between pretrial detainees and convicted inmates concerning basic human needs such as medical care. See Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001) (citing Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996) (en banc)). In other words, the same legal standard governs constitutional claims concerning medical care by pretrial detainees and convicted inmates. See id. Thus, precedent decided under the Eighth
A prison official’s “deliberate indifference to serious medical needs of prisoners” can constitute “unnecessary and wanton infliction of pain” of the type proscribed by the Eighth Amendment and actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (“Because society does not expect that prisoners will have unqual ified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’ ”). A serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required. Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006) (citation omitted). In this context, it is “obduracy and wantonness, not inadvertence or error in good faith,” that characterizes the conduct prohibited by the Eighth Amendment, “whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). “Thus, the prison official’s state of mind must be examined to determine whether the undue hardship endured by the prisoner was a result of the prison official’s deliberate indifference.” Bradley, 157 F.3d at 1025 (citing Wilson v. Setter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)).
The deliberate indifference standard has both an objective and subjective component. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To establish deliberate indifference under this standard, the prisoner must show that the defendants were both (1) aware of facts from which an inference of an excessive risk to the prisoner’s health or safety could be drawn, and (2) that they actually drew an inference that such potential for harm existed. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). Under the subjective prong of this analysis, a prison official acts with deliberate indifference “only if [ (A) ] he knows that inmates face a substantial risk of serious bodily harm and [ (B) ] he disregards that risk by failing to take reasonable measures to abate it.” Gobert, 463
The deliberate indifference standard is an “extremely high” one to meet. Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). It is well established that “[unsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference, nor does a prisoner’s disagreement with his medical treatment, absent exceptional circumstances.” Gobert, 463 F.3d at 346 (citing Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Hall v. Thomas, 190 F.3d 693, 697 (5th Cir. 1999); Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999)). “Furthermore, the decision whether to provide additional treatment ‘is a classic example of a matter for medical judgment.’ ” Gobert, 463 F.3d at 346 (citing Domino, 239 F.3d at 756 (quoting Estelle, 429 U.S. at 107, 97 S.Ct. 285)). “A showing of deliberate indifference requires the prisoner to submit evidence that prison officials ‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.’ ” Gobert, 463 F.3d at 346 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
C. Claims of Inadequate Blood Glucose Monitoring for Diabetes
Baughman notes that the Jail has no written policy that governs the frequency of blood glucose monitoring or that requires fingerstick testing before each dose of insulin, which Baughman believes is necessary to avert potentially serious consequences (i e., hypoglycemia) for a diabetic whose blood sugar happens to be dangerously low when the dose is administered. Baughman contends, therefore, that Dr. Seale, Dr. Guice, Davis, Lambi, and Howard have failed to adopt polices and procedures necessary to protect inmates with diabetes and that they have also failed to adequately supervise and train “directors, administrators and staff’ on how frequently to conduct fingerstick testing despite the fact that damage to Baughman was a “highly predictable consequence” of their failure to do so.
Arguing that Baughman has not established that he was denied adequate care for diabetes with the requisite deliberate indifference, Dr. Seale, Dr. Guice, Davis, Lambi, and Howard argue collectively that they are entitled to summary judgment on the defense of qualified immunity because Baughman cannot demonstrate that they are liable under 42 U.S.C. § 1983 as supervisory officials. A supervisory official is not liable under § 1983 for the actions of subordinates “on any theory of vicarious liability.” Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987) (citations omitted). “Rather, a plain tiff must show either the supervisor personally was involved in the constitutional violation or that there is a ‘sufficient causal connection’ between the supervisor’s conduct and the constitutional violation.” Evett v. Deep East Tex. Narcotics Trafficking Task Force, 330 F.3d 681, 689 (5th Cir. 2003) (quoting Thompkins, 828 F.2d at 304); see also Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 550 (5th Cir. 1997) (“[T]he misconduct of the subordinate must be affirmatively linked to the action or inaction of the supervisor.”). Thus, “[a] supervisory official may be held liable... only if (1) he affirmatively participates in the acts that cause the constitu
Baughman does not allege that Dr. Seale, Dr. Guice, Davis, Lambi, or Howard personally participated in a constitutional deprivation.
Also, where, as here, a plaintiff asserts liability based on a failure to train or supervise, he must show that “(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to supervise or train and the violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate indifference.” Id. (quoting Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009)); see also Estate of Davis v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (citations omitted).
Baughman falls short of the showing required to impose supervisory liability where his medical care for diabetes is concerned. In support of his claim, Baughman simply notes that medical standards of care recommended by the American Diabetes Association (“ADA”) and the Federal Bureau of Prisons call for testing blood glucose levels up to three times daily.
There are more than 2,000 pages of medical records in this case, confirming that Baughman has received extensive care and monitoring throughout his current incarceration both at the Jail and by specialists outside the Jail.
Viewing all of the evidence in the light most favorable to Baughman as the non-movant, he does not establish that the practice of providing fingersticks at the discretion of Jail medical providers has resulted in a denial of care with wanton disregard for a serious medical need. Even assuming that the existing policy or practice falls below the standard of care that is considered optimal, it is well established that neither allegations of malpractice nor disagreement with the level of care provided rise to the level of deliberate indifference that is actionable under 42 U.S.C. § 1983. See Gobert, 463 F.3d at 346; Hall, 190 F.3d at 697; Stewart, 174 F.3d at 537; Banuelos, 41 F.3d at 235;
Likewise, for the foregoing reasons, Baughman does not demonstrate that his constitutional rights were violated due to any failure to train or supervise the nurses who administer insulin at the Jail. Absent a genuine issue of material fact, Dr. Seale, Dr. Guice, Davis, Lambi, and Howard are entitled to qualified immunity on the claims against them regarding the adequacy of care for his diabetes. Accordingly, the motion for summary judgment filed by these individual defendants will be granted with respect to this claim.
D. Denial of Adequate Dental Care
As outlined above, Baughman requested fillings for tooth decay and partial dentures, but alleges that his requests were refused and he was told that he had to hire a private dentist to provide care at the Jail if he wanted this type of treatment. Arguing that he is indigent and unable to afford the services of a private dentist, Baugh-man contends that this “policy” of refusing to provide restorative treatment at County expense for tooth decay has caused him to lose several teeth that could have been saved and that, without dentures, he has been put at risk of losing more teeth and subjected to “preventable pain.”
Drs. Seale, Guice, Chin, and Harper do not dispute that Baughman was not offered restorative treatment or dentures. These defendants maintain, nevertheless, that the treatment options offered to him (extraction of his decaying teeth or care provided by a private dentist at his expense) were not unreasonable in light of clearly established law. For this reason, Drs. Seale, Guice, Chin, and Harper maintain that they are entitled to qualified immunity.
For purposes of qualified immunity, “[a] clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per cu-riam) (citation and internal quotation marks omitted). While there need not be a case “directly on point” for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Thus, a clearly established right may not be defined “at a high level of generality.” Mullenix, 136 S.Ct. at 308 (citing al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074). Rather, a clearly established right must be “ ‘particularized’ to the facts of the case.” White v. Pauly, — U.S.-, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); see also Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013) (explaining that a clearly established right “must derive from ‘controlling authority — or a robust consensus of persuasive authority — that defines the eon-
This case concerns an indigent inmate who requested dental care, specifically, fillings for his decayed teeth and partial dentures to replace missing teeth, but was denied such care at County expense. The Court considers separately whether Baughman had a clearly established right to restorative treatment for tooth decay and for dentures and, if so, whether he was denied that right by dental providers (Drs. Chin and Dr. Harper) and by the supervisory officials (Drs. Seale and Guice).
I. A Detainee’s Right to Dental Care for Tooth Decay
Courts have recognized that “[prisoners generally have more extensive dental problems that the average citizen.” Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980); Mounce v. Doe, Civ. No. 12-669, 2014 WL 2587698, at *12 (E.D. La. 2014) (summarizing testimony from a dentist, who observed that inmates frequently come into a county jail with “terrible, terrible, terrible teeth” because they do not otherwise get regular dental care). It is undisputed that tooth decay, if left untreated, is progressive and can result in extreme pain, loss of tooth structure, and ultimately loss of the affected tooth.
It is beyond dispute that the government has an “obligation to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A prison official’s failure to provide medical care with deliberate indifference to a prisoner’s serious medical needs can constitute “unnecessary and wanton infliction of pain,” which is prohibited by the Eighth Amendment. Id. at 104, 97 S.Ct. 285 (citation omitted). Although a non-indigent prisoner may be expected to pay for some or all of his medical expenses,
The defendants do not address this authority. Instead, they emphasize that access to dental care in the Jail setting differs from what is available in the community because “[j]ail settings are typically short term environments.”
There is authority for the proposition that a policy of denying treatment for painful dental conditions “unless the inmate is willing to submit to extraction of a tooth at county expense, or has the resources to employ a local dentist for an emergency fílling[,] ... violates the requirement that reasonably adequate medical care be supplied to persons in custody.” Heitman v. Gabriel, 524 F.Supp. 622, 627 (W.D. Mo. 1981); see also Stack v. McCotter, 79 Fed.Appx. 383 (10th Cir. 2003) (holding that summary judgment was inappropriate where an inmate was denied care under a prison policy which explicitly stated, “[d]o not ask to go to the dentist unless you are willing to have your tooth pulled”) (emphasis in original); Beamon v. Parkland Hosp., Civ. No. 3:08-0693, 2008 WL 4061417, at *3 (N.D. Tex. Aug. 20, 2008) (concluding without reaching the merits that an inmate who alleged that he was refused treatment other than extraction stated a claim under the Eighth Amendment standard); Mitchell v. Liberty, Civ. No. 8-341-B-W, 2009 WL 33435, *4 (D. Me. Jan. 5, 2009) (concluding that a detainee articulated a possible constitutional violation in connection with a county-wide policy of denying dental care other than emergency extractions). In that respect, offering extraction only as treatment for tooth decay may be unconstitutional depending on the facts of the case. See Chance v. Armstrong, 143 F.3d 698, 703-04 (2d Cir. 1998) (recognizing that a dentist’s decision to recommend extraction rather than fillings could be the product of
Baughman has presented evidence showing that he arrived at the Jail with a broken, decaying, and missing teeth, and that he was denied restorative dental care in the form of fillings by Drs. Chin and Harper,
The Court’s ruling here is narrow. The Court addresses only whether Baughman was denied dental care in the form of standard fillings to repair one or more of his decayed teeth. It is undisputed that Baughman arrived at the Jail with multiple teeth in various states of decay and he had already had more than ten teeth extracted before he was arrested in 2014. There is conflicting evidence about whether standard fillings would have resolved Baugh-man’s pain and prevented further decay where only two of his teeth are concerned (teeth # 18 and # 20).
To the extent that Baughman contends that Drs. Chin and Harper failed to diagnose decay before it advanced beyond the point of salvageability with a standard filling, his claim sounds only in common law negligence or dental malpractice, and does not constitute deliberate indifference or state a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105, 97 S.Ct. 285 (“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical .mistreatment under the Eighth Amendment.”); see also Stewart (“[Although inadequate medical care may, at a certain point, rise to the level of a constitutional violation, malpractice or negligent care does not.”).
Likewise, to the extent that Drs. Chin and Harper recommended other more extensive treatment such as a root canal with a crown, the exercise of medical judgment in making that recommendation is not actionable under the Eighth Amendment. See Estelle, 429 U.S. at 107, 97 S.Ct. 285 (explaining that the decision whether to provide a particular type of treatment “is a classic example of a matter for medical judgment”). In that respect, it is well established that disagreement with or differences of opinion about treatment options provided do not rise to the level of deliberate indifference and do not demonstrate a constitutional violation. See Gobert, 463 F.3d at 346 (citations omitted); see also Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
It is also well established that an inmate has no constitutional right to have the treatment he prefers or the best medical treatment available. See Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; see also Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir. 1982) (“The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves, nor the therapy that Medicare and Medicaid provide for the aged or the needy.”). Prison officials are not required to provide treatment that is “the best that money could buy[.]” Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992); McMahon v. Beard, 583 F.2d 172, 174 (5th Cir. 1978). As Baughman’s dental expert concedes, root canals are “generally not performed in a correctional environment.”
In this case, however, there are unresolved fact issues about whether Baughman’s decayed teeth were beyond saving with a standard filling such that extraction could be considered appropriate treatment. See Chance, 143 F.3d at 703-04. For this reason, Drs. Chin and Harper are not entitled to summary judgment on the issue of qualified immunity from liability for Baughman’s claim that he was denied adequate dental care for tooth decay.
Baughman also claims that he was denied partial dentures to address serious chewing difficulties. The Fifth Circuit has repeatedly held that an inmate alleging that he suffers from difficulty eating, severe pain, and disfigurement, among other symptoms, may have' a serious medical need for dentures. See Huffman v. Linthicum, 265 Fed.Appx. 162 (5th Cir. 2008) (allegations of intense physical pain, swollen gums, weight loss, disfigurement, and stomach pain due to the failure to provide dentures is sufficient to articulate a serious medical need for dentures); Vasquez v. Dretke, 226 Fed.Appx. 338, 340 (5th Cir. 2007) (allegations of difficulty eating, headaches, disfigurement, severe pain, and bloody stool are sufficient to demonstrate a serious medical need for dentures under the Eighth Amendment); Williams v. Mason, 210 Fed.Appx. 389, 390 (5th Cir. 2006) (concluding that a prisoner may have a serious medical need for dentures after he complained he suffered cuts and bleeding, difficulty chewing, digestive difficulties and was denied dentures and a soft diet); Green v. Hendrick Medical Center, 251 F.3d 157 (5th Cir. 2001) (unpublished) (concluding that an inmate alleging denial of new dentures and refusal to treat lacerated, swollen gums caused by loose fitting dentures stated a claim under the Eighth Amendment). Other courts also have recognized that lack of dentures, or delay in providing them, can rise to the level of a serious medical need that is actionable under the Eighth Amendment. See, e.g., Farrow v. West, 320 F.3d 1235 (11th Cir. 2003) (finding that summary judgment was improper where a 15-month delay in providing dentures caused pain, bleeding, swollen gums, and periodic weight loss, which raised a fact issue about whether the dentist displayed deliberate indifference to a serious medical need); Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (per curiam) (concluding that an inmate’s allegations of an inability to chew, bleeding, headaches, and disfigurement are sufficient to demonstrate a serious medical need for dentures); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (reversing summary judgment for defendants where prisoner alleged that lack .of dentures caused bleeding gums, breaking teeth, and pain due to an inability to eat properly). Based on this precedent, it is clearly established that prison officials can act with deliberate indifference by denying an inmate’s serious medical need for dentures.
Turning to the record in this case, Dr. Chin testified at his deposition that he considers Baughman a strong candidate for full or “complete dentures,”
3. Supervisory Liability
Baughman alleges that Drs. Seale and Guice are liable in their supervisory capacity as the Jail’s Executive Medical Director and Interim Executive Medical Director, respectively, because they were responsible for overseeing the Dental Clinic and ensuring that the dentists provided adequate dental care. Specifically, Baughman claims that the extraction-only policy enforced by the dentists violated his constitutional rights and that this violation was caused by Drs. Seale and Guice’s failure to adequately staff the Dental Clinic or train and supervise the dentists. Baughman adds that Dr. Chin is also liable as a supervisor for failing to train Dr. Harper to provide adequate dental care.
Drs. Seale and Guice argue that, as supervisory officials without direct personal involvement in the dental care provided, they properly relied on the dentists, who were trained and licensed by the State of Texas, to provide adequate dental care consistent with the Jail’s written policies, which were independently reviewed and approved by TCJS and NCCHC. Drs. Sea-le and Guice argue further that Baughman cannot demonstrate liability on their part because he cannot establish that they acted with the requisite deliberate indifference.
As noted earlier, a supervisory official can be liable under 42 U.S.C. § 1983 where the failure to train or supervise amounts to deliberate indifference. See Porter, 659 F.3d at 446; Goodman, 571 F.3d at 395. Both the Supreme Court and the Fifth Circuit have emphasized that “ ‘[deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Davis, 406 F.3d at 381 (quoting Board of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Where supervisory liability is concerned, “[pjroof of deliberate indifference normally requires a plaintiff to show a
It is undisputed that neither Dr. Seale nor Dr. Guice is a dentist and neither personally participated in the care that was provided to Baughman. There is no evidence that contradicts Drs. Seale and Guice’s testimony that decisions about the level of dental care provided at the Jail were delegated to the dentists to make in the exercise of their professional judgment.
Dr. Guice, who has only served as Interim Director since September of 2015, testified at his deposition that he was unaware that extractions were the only treatment provided for tooth decay by Jail dentists.
Dr. Seale also testified at his deposition that he did not know that extraction was the only treatment offered for indigent inmates with tooth decay.
Drs. Seale and Guice concede that there is no particular training program for dentists at the Jail and they also appear to concede that no real effort was made to ensure that the level of care provided in the Dental Clinic complied with the Jail’s written policies or generally accepted standards such as those demanded by the TCJS or the NCCHC. Baughman points to the report reviewed by Dr. Seale about the number of extractions being done by Jail dentists on a monthly basis, showing that no fillings were provided in 2016, and suggests that this should have placed him on notice that an extraction-only policy was being enforced in a manner that was contrary to the Jail’s written policy of providing treatment “not limited to extractions.”
A showing of deliberate indifference requires a plaintiff to “show that the failure to train reflects a ‘deliberate’ or ‘conscious’ choice to endanger constitutional rights.” Davis, 406 F.3d at 383 (quoting Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003)). There is insufficient evidence that Drs. Seale or Guice, who are not dentists, actually knew, or had reason to suspect, that the Jail dentists had developed a practice of only offering extractions for tooth decay if a detainee could not afford to hire his own dentist under circumstances in which extraction was not medically necessary. “[N]otice of a pattern of similar violations is required” in order to impose liability on a supervisory official. Davis, 406 F.3d at 383 (emphasis in original). Other than pointing to the deficient care that he received, Baughman does not demonstrate a pattern of similar violations that would have placed Drs. Seale or Guice on notice of a problem. This is insufficient to impose supervisory liability under § 1983. See Davis, 406 F.3d at 382-83; see also Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1360-61, 179 L.Ed.2d 417 (2011) (explaining that “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train”) (quoting Board of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). In that respect, the Supreme Court has recognized that where the allegedly untrained employees are licensed professionals, “recurring constitutional violations” are not the “obvious consequence” of failing to provide in-house training on how to do their jobs. Connick, 131 S.Ct. at 1363. Thus, Baughman fails to show that Dr. Seale, Dr. Guice, or any other supervisory official at the Jail, “ignored a known or obvious risk” that unconstitutionally deficient care would result without a particular training program in place. See Brown, 623 F.3d at 255; see also Thompson v. Upshur Cty., Tex., 245
To the extent that Baughman blames Dr. Chin for failing to train Dr. Harper, his claim fares no better. There is evidence that, as the more senior dentist, Dr. Chin and the dental assistants were responsible for getting Dr. Harper “up to speed” on the Jail’s policies and practices of providing care when Dr. Harper, was hired in 2012.
E. Retaliation Claims
Baughman contends that Dr. Seale, Davis, and Rossi improperly retaliated against him by imposing restrictions on his commissary privileges in April 2015, after he sent a letter to TCJS, complaining about his medical and dental care at the Jail.
Dr. Seale, Davis, and Rossi argue that they are entitled to qualified immunity because Baughman has no admissible evidence to demonstrate any retaliatory intent on their part and that he cannot otherwise establish the requisite causation. To establish causation, the plaintiff must demonstrate that “but for the retaliatory motive the complained of incident ... would not have occurred.” Johnson, 110 F.3d at 310. “This places a significant burden on the inmate.” Id. “The inmate must produce direct evidence of motivation or ‘allege a chronology of events from which retaliation may plausibly be inferred.’” Id. (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
Baughman does not present any direct evidence of retaliatory motive or intent and the chronology does not contain evidence from which retaliation may be inferred. The record shows that Baughman mailed his letter to TCJS on March 30, 2015, complaining about inadequate medical and dental care at the Jail.
Dr. Seale notes that restrictions on commissary privileges are “common for patients who present complications in the delivery of health care because of their lack of compliance with dietary recommendations” and denies that he had any involvement with the decision to impose commissary restrictions against Baugh-man.
Baughman presents nothing to refute the defendants’ evidence and he does not otherwise demonstrate that Dr. Seale, Davis, or Rossi had any intent to retaliate
IV. ANALYSIS OF CLAIMS AGAINST HARRIS COUNTY
Baughman contends that Harris County is liable as a municipal entity for the failure of Jail medical and dental personnel to provide him with adequate care for his serious medical and dental needs.
A. Municipal Liability under 42 U.S.C. § 1983
Municipalities are deemed to be “persons” susceptible to suit under § 1983. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal liability, however, cannot be sustained under a theory of respondeat superior or vicarious liability for wrongdoing by a municipal employee. See id. at 691, 98 S.Ct. 2018; James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009). A municipality is only liable under § 1983 for acts that are “directly attributable to it ‘through some official action or imprimatur.’ ” James, 577 F.3d at 617 (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). To proceed beyond the summary judgment stage, “a plaintiff making a direct claim of municipal liability must demonstrate a dispute of fact as to three elements: that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional rights.” Davidson v. City of Stafford, Tex., 848 F.3d 384, 395 (5th Cir. 2017) (citing Culbertson v. Lykos, 790 F.3d 608, 628 (5th Cir. 2015)).
Harris County maintains that Baughman cannot establish any of the necessary prerequisites for municipal liability because (1) he does not demonstrate that
There are unresolved fact issues, however, about whether Baughman was denied adequate dental care for tooth decay in violation of the Eighth Amendment pursuant to a widespread practice or custom of offering extractions as the only available treatment option for inmates with cavities, but with no funds to pay for care by a private dentist. Arguing further that an extraction-only practice evolved because the Dental Clinic is understaffed,
Harris County argues that, even assuming that a deficient practice was the moving force behind a violation of Baughman’s right to adequate dental care, there is no evidence that care was denied as the result of an official policy adopted by an official policymaker who had notice of a problem, but was deliberately indifferent to the likelihood that a constitutional violation would occur.
Official policy, which establishes municipal culpability, “can arise in various forms.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009). Official policy usually exists in the form of “written policy statements, ordinances, or regulations, but may also arise in the form of a widespread practice that is ‘so common and well-settled as to constitute a custom that fairly represents municipal policy.’ ” James, 577 F.3d at 617 (citations and quotations omitted). “A policy is official only ‘when it results from the decision or acquiescence of the municipal officer or body with “final policymaking authority” over the subject matter of the offending policy.’ ” Id. (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)).
Assuming that an extraction-only policy exists, Harris County maintains that it is not an official policy because the Harris County Sheriff is the final policymaker for all matters involving the Jail and there is no evidence showing that the Sheriff had actual or constructive knowledge of the practice about which Baugh-man complains.
The evidence reflects that the Sheriff has appointed his Chief Dephty to serve as administrator of the Jail, and that Dr. Seale and Dr. Guice reported to him through a chain of command.
There is no evidence showing that the practice or policy with which Baughman takes issue was ever adopted or endorsed by the Sheriff, thereby making it
Baughman’s contention that Harris County is liable for failing to train or supervise dentists at the Jail fails for similar reasons. In that respect, “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick, 131 S.Ct. at 1359 (citing Oklahoma City v.
As noted previously in connection with the claims against Dr. Seale and Dr. Guice, Baughman does not present evidence of a pattern of violations similar to those alleged by him that were the product of any lack of training or supervision on the part of a municipal actor. Accordingly, Baugh-man does not satisfy the high standard of proof for purposes of imputing liability to a municipal entity under § 1983. See Con-nick, 131 S.Ct. at 1359-60. Absent a genuine issue of material fact on this question, Harris County is entitled to summary judgment on Baughman’s claims under 42 U.S.C. § 1983.
B. State Law Negligence Claims
Baughman alleges that Harris County has failed to ensure that diabetes and his dental needs were treated in a manner that comports with the “good and accepted” standard of care for medical and dental practices.
Harris County invokes sovereign immunity, which protects government entities from vicarious liability for the tor-tious acts of agents or employees acting in the scope of their employment.
Baughman argues that immunity is waived pursuant to the Texas Tort Claims Act (“TTCA”), which provides that “[a] governmental unit in the state is liable for ... personal injury ... caused by a condition or use of tangible personal.. .property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code § 101.021.
Pointing to § 101.021 of the TTCA, Baughman argues that his claims
V. REMAINING CLAIMS AND DEFENDANTS
Remaining for trial is Baughman’s claim that Drs. Chin and Harper violated his constitutional rights by denying him adequate dental care in the form of standard fillings to treat advanced tooth decay in one or more of his teeth that were ultimately extracted.
It is not apparent that Baughman has a claim against former Sheriff Adrian Garcia or former Sheriff Ron Hickman in their personal capacity where his dental care is concerned, although neither of these defendants has moved for summary judgment. Likewise, it is unclear what claims Baughman intends to continue litigating against Renee Hinojosa, who also did not move for summary judgment. In that respect, Baughman has asserted that Hinojo-sa violated his constitutional rights by prescribing a heart-healthy diet, which he claims was inappropriate -for his diabetes, although even Baughman’s own medical expert agrees that this diet is appropriate for diabetic patients.
VI. CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1. The motion for summary judgment by Defendants Dr. Michael Seale, Dr. Marcus Guice, Bobby Davis, Sharon Lambí, and Beverly Howard [Doc. # 179] is GRANTED.
2. The motion for summary judgment by Harris County [Doc. # 181] is GRANTED.
3. The motion for summary judgment by Defendants Dr. Edwin Chin, Dr. Allen Harper, and Catherine Rossi [Doc. # 183] is GRANTED, in part, with respect to the retaliation claims against Catherine Rossi, the claim that Drs. Chin and Harper denied Baughman adequate dental care in the form of dentures, and the claim of supervisory liability against Dr. Chin. The motion is DENIED with respect to the claim that Drs. Chin and Harper denied Baughman adequate dental care in the form of standard fillings to treat tooth decay in violation of the Eighth Amendment.
. Fourth Amended Complaint [Doc. # 134], at ¶¶ 2-13.
. See Tolan v. Cotton, U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014).
. Fourth Amended Complaint [Doc. # 134], at ¶ 16.
. See Guice Dep. [Doc. # 188, Ex. 1], at 136:20-23 (estimating that the length of stay is between 73 and 75 days on average); but see Seale Dep. [Doc. # 188, Ex. 2], at 121:23-
. Fourth Amended Complaint [Doc. # 134], at ¶ 16.
. Court records reflect that Baughman currently has two active felony cases stemming from his April 2014 arrest. Those cases are pending in the 174th District Court for Harris County, Texas, in State of Texas v. Baughman, Cause No. 153285001010 (aggravated assault with a deadly weapon), and State of Texas v. Baughman, Cause No. 142342101010 (felon in possession of a firearm). A trial is reportedly scheduled for June 5, 2017. See Harris County District Clerk’s Office website, located at: www.hcdistrictclerk.com (last visited May 24, 2017).
. See Baughman Deck [Doc. # 190, Ex. 8], at 1-2; see also Inmate Complaint Form [Doc. # 190, Ex. 5], at 1 (Bates No. HC/Baughman 8268); Inmate Complaint Form [Doc. # 190, Ex. 9], at 1 (Bates No. HC/Baughman 8106).
. HCSO Health Services Bureau Dental: Annual and Juvenile Exam Form [Doc. # 190, Ex. 14], at 1-2 (Bates No. HC/Baughman 5917) (filed under seal).
. Guice Aff. [Doc. # 179-4], at ¶¶ 13, 15.
. See Original Complaint [Doc. # 1].
. See Amended Complaint [Doc # 11]; Second Amended Complaint [Doc. # 29]; Third Amended Complaint [Doc. # 114].
. See Memorandum and Order dated Feb. 24, 2016 [Doc. #110], at 4-5.
. In late 2016, Ed Gonzalez succeeded Hickman as the elected Harris County Sheriff. To date, Gonzalez has not been served or named as a defendant in this case.
. See Tex. Loc. Gov’t Code § 351.041(a) (“The sheriff of each county is the keeper of the county jail.”).
. The Harris County Jail includes four major facilities with a design capacity of 9,800 detainees, as well as several satellite locations operated by HCSO, which increase the Jail's available capacity overall. See U.S. Dep’t of Justice, Civil Rights Div., Memorandum dated June 4, 2009 [Doc. # 190, Ex. 24], at 2. "With a population approaching 10,000 detainees, the Jail is one of the largest detention facilities in the country.” Id. at 16.
. Texas Comm’n on Jail Standards Annual Jail Reports, 2014-2016 [Doc. # 179-4], at 14, 22, 26.
. Seale Aff. [Doc. # 179-3], at ¶ 2.
. Seale Dep. [Doc. # 188, Ex. 2], at 14:22-16:9, 17:19-20, 18:16-24, 22:15-23.
. Id. at 15:23-16:22.
. Seale Aff. [Doc. # 179-3], at ¶¶ 2-3.
. Guice Aff. [Doc. # 179-4], at ¶ 3.
. Guice Dep. [Doc. # 188, Ex. 1], at 19:10— 23:22 (describing medical infirmary, general clinic, specialty clinics, and services).
. Id. at 21:6-23:2.
. Seale Aff. [Doc. # 179-3], at ¶ 3; Guice Aff. [Doc. # 179-4], at ¶ 5.
. Seale Dep) [Doc. #188, Ex. 2], 17:19-18:24.
. Guice Aff. [Doc. # 179-4], at ¶ 1; Gtiice Dep. [Doc. # 188, Ex. 1], at 13:20-22, 15:2-16:16, 125:19-126:8 (noting that he does not intend to stay on permanently as the Executive Director).
. Guice Dep. [Doc. # 188, Ex. 1], at 144:10-20.
. Lambi Aff. [Doc. # 179-5], at ¶ 6; Lambi Dep. [Doc. # 188, Ex. 3], at 17:21-18:10.
. Howard Aff. [Doc. # 179-6], at ¶ 3.
. Plaintiffs Response to the Individual Capacity Defendants' Motions for Summary Judgment [Doc. # 190], at 33 (alleging that, as "directors” in charge of the Chronic Care Clinic, Lambi and Howard were responsible for determining the frequency of blood glucose monitoring for diabetic inmates).
. Lambi Dep. [Doc. # 188, Ex. 3], at 32:10-33:3.
. Guice Dep. [Doc. # 188, Ex. 1], at 41:11— 42:11.
. Seale Dep. [Doc. # 188, Ex. 2], at 83:4-14; see also Lambi Dep. [Doc. # 188, Ex. 3], at 86:3-88:21.
. Davis Aff. [Doc. # 179-7], at ¶ 3.
. Id.
. Id.
. Rossi Aff. [Doc. # 183, Ex. 3], at ¶ 2.
. Id. at ¶ 9.
. Chin Dep. [Doc. # 188, Ex. 6], at 20:13-25, 21:14-22.
. Id. at 20:13-22, 22:9-10, 45:17-48:25.
. Id. at 15:22-16:1.
. Harper Aff. [Doc. # 183-2], at ¶ 2.
. Guice Dep. [Doc. # 188, Ex. 1], at 33:4-9.
. Id. at 48:23-49:5.
. Id. at 34:8-22; Lambi Dep. [Doc. # 188, Ex. 3], at 56:14-24 (distinguishing type 2 and type 1 diabetes).
. Expert Report of Dr. David H. Madoff ("Madoff Report") [Doc. # 190, Ex. 6], at 3 (filed under seal).
. Fourth Amended Complaint [Doc. # 134], at ¶ 20.
. Lambi Dep. [Doc. # 188, Ex. 3] at 57:7-22, 59:2-6; Guice Dep. [Doc. # 188, Ex. 1], at 35:4-19.
. Lambi Dep. [Doc. # 188, Ex. 3], at 58:7-14.
. Stedman's Medical Dictionary 933 (28th ed. 2006) (noting that hypoglycemia may occur when blood glucose drops below the normal range, which is between 60 to 100 milligrams per deciliter).
. Id.
. Madoff Report [Doc. # 190, Ex. 6], at 7.
. Seale Dep. [Doc. # 188, Ex. 2], at 62:16-25; Guice Dep. [Doc. # 188, Ex. 1], at 67:17-19 ("Most diabetics with experience can tell you when their sugar is too low.").
. Madoff Report [Doc. # 190, Ex. 6], at 3.
. Id.
. See Madoff Report [Doc. # 190, Ex. 6], at 3-4; see also Lambi Dep. [Doc. # 188, Ex. 3], at 73:20-76:1 (referencing standards articulated by the American Diabetes Association, the Institute for Clinical Systems Improvement, and the Federal Bureau of Prisons); Seale Dep. [Doc. # 188, Ex. 2], at 66:11-76:4 (same).
. Seale Aff. [Doc. # 179-3], at ¶ 12.
. See id.', see also Howard Aff. [Doc. # 179-6], ¶ 6 (summarizing the care Baughman received at the Chronic Care Clinic, including his quarterly Ale test results); Seale Dep. [Doc. # 190, Ex. 1], at 76:9-77:3, 83:4-14; Lambi Dep. [Doc. # 190, Ex. 2], at 86:3-88:21.
. Seale Aff. [Doc. # 179-3], at p. 4.
. Seale Dep. [Doc. # 188, Ex. 2], at 33:8-36:11.
. See Lambi Dep. [Doc. # 188, Ex. 3], at 75:20-76:1; Guice Dep. [Doc. # 188, Ex. 1], at 66:20-25; Seale Dep. [Doc. # 188, Ex. 2], at 74:20-75:19 (explaining that an individual practitioner is free to order more fingersticks if he or she felt it was clinically indicated).
. Baughman Decl. [Doc. # 190, Ex. 8], at 1.
. Id. at 1-2; Inmate Complaint Form [Doc. # 190, Ex 5], at 1 (Bates No. HC/Baughman 8268).
. Plaintiffs Response to the Individual Capacity Defendants’ Motions [Doc. # 190], at 13.
. Id. at 14.
. Fourth Amended Complaint [Doc. # 134], at ¶¶ 40, 46, 67-68.
. Id. at ¶¶ 78-79.
. Fourth Amended Complaint [Doc. # 134], at ¶¶ 73-74. Previously, the Court dismissed with prejudice state law negligence claims lodged by Baughman against former Sheriff Adrian Garcia, former Sheriff Ron Hickman, Dr. Michael Seale, Bobby Davis, Dr. Marcus Guice, Sharon Lambi, Dr. Edwin Chin, Dr. Alan Harper, Beverly Howard, Cathy Rossi, and Renee Hinojosa as precluded by an election-of-remedies provision found in § 101.106(c) of the Texas Civil Practice and Remedies Code. See Memorandum and Order dated October 21, 2016 [Doc. # 160], at 6-7. As a result, the only remaining negligence claims in this case concern Harris County.
. Inmate Complaint Form [Doc. # 190, Ex. 9], at 1 (Bates No. HC/Baughman 8106).
. HCSO Manual of Policies and Procedures for Health Services, No. J-E-06 [Doc. # 190, Ex. 28], at Bates No. HC/Baughman 5728.
. Id.
. Id.
. Id. at Bates No. HC/Baughman 5728-5729.
. Id. at Bates No. HC/Baughman 5729 (emphasis added).
. Id.
. HCSO Manual of Policies and Procedures for Dental Services, No. 16 [Doc. # 190, Ex. 27], at Bates No. HC/Baughman 5726 (emphasis added).
. Plaintiff’s Response to the Individual Capacity Defendants’ Motions [Doc. # 190], at 14; Dental Progress Note [Doc. # 190, Ex. 12], at 1-2 (Bates No. HC/Baughman 9420) (filed under seal).
. Chin Dep. [Doc. # 188, Ex. 6], at 151:1— 152:11, 157:13-25.
. Id. at 152:12-17, 154:12-20, 158:5-23.
. Id. at 152:21-153:4, 158:16-18.
. Grievance # 15000 [Doc. # 190, Ex. 13], at Bates No: HC/Baughman 8336 & 8337.
. Id.
. Grievance Resolution Form — Inmate Grievance Board [Doc. # 190, Ex. 31], at Bates No. HC/Baughman 8335.
. Chin Dep. [Doc. # 188, Ex. 6], at 155:12— 156:10.
. Id.
. HCSO Health Services Bureau Dental: Annual and Juvenile Exam Form [Doc. # 190, Ex. 14], at 1-2 (Bates No. HC/Baughman 5917) (filed under seal).
. Id.
. Id.
. Chin Dep. [Doc. # 188, Ex. 6], at 159:16-160:24.
. Id. at 161:15-16, 162:17-23.
. Expert Report of Dr. Jay D. Shulman (“Shulman Report”) [Doc. # 190, Ex. 26], at 28 (summarizing treatment provided to Baughman on February 19, 2016) (filed under seal).
. Id. (referencing Bates No. HC/Baughman 5922).
. Dental Provider Note [Doc. # 190, Ex. 15], at 3 (Bates No. HC/Baughman 5926) (filed under seal).
. Chin Dep. [Doc. # 188, Ex. 6], at 168:20-169:2.
. Id. at 167:11-168:12; 170:2.
. Chin Dep. [Doc. # 188, Ex. 6], at 174:12-22.
. Shulman Report [Doc. # 190, Ex. 26], at 29 (summarizing treatment provided to Baughman on April 20, 2016) (filed under seal).
. Id.
. Chin Dep. [Doc. # 188, Ex. 6], at 41:18— 42:4.
. Id. at 41:21-42:1.
. Plaintiff's Response to the Individual Capacity Defendants' Motions [Doc. # 190], at 16-17.
. Id. at 16. See also Shulman Report [Doc. # 190, Ex. 26], at 20-21 (filed under seal) (characterizing the Jail’s practice of refusing to fill cavities as a "de facto extraction only policy”).
. Chin Dep. [Doc. # 188, Ex. 6], at 174:1-7.
. Id. at 137:6-18, 144:1-17.
. Id. at 142:16-143:10.
. Id. at 120:8-122:10.
. Seale Aff. [Doc. # 179-3], at ¶ 21; Guice Aff. [Doc. # 179-4], at ¶ 30.
. Fourth Amended Complaint [Doc. # 134], at ¶¶ 54, 57, 59, 70-71.
. Id. at ¶¶ 78-79.
. Id. at ¶¶ 76-77.
. Id. at ¶ 62.
. Id.
. Id. at ¶ 63.
. Id. at ¶ 63.
. Id. at ¶¶ 81-82.
. Motion for Summary Judgment for Individual Defendants Michael Seale, M.D., Bobby Davis, R.N., Marcus Guice, M.D., Sharon Lambí, MSPAS, PA-C, [and] Beverly Howard, Ph.D., R.N., FNP-BC [Doc. # 179], at 28-49.
. Id.
. Defendants Dr. Edwin Chin, Dr. Alan Harper, and Catherine Rossi’s Motion for Summary Judgment [Doc. #183], at 11-17.
. Defendant Harris County's Motion for Summary Judgment [Doc. # 181], at 24-33.
. Id. at 33-35.
. Id. at 36-39.
. Although he is technically a detainee awaiting trial, Baughman acknowledges that he is a previously convicted felon who was on parole at the time of his arrest. See Fourth Amended Complaint [Doc. # 134], at ¶ 16. In his response to the summary judgment motions, Baughman does not seek relief under the legal standard that applies to pretrial detainees under the Fourteenth Amendment. See Plaintiff's Response to Harris County's Motion for Summary Judgment [Doc. # 188], at 18, n. 4 (citing Presley v. Sanders, Civ. A. No. 1:14cvl30, 2016 WL 6651375, at *2 (S.D. Miss. Nov. 10, 2016)). He therefore has abandoned this theory of recovery, and the Court does not address whether Baughman’s claims concern "episodic acts or omissions” or “conditions of confinement,” which is a distinction developed by the Fifth Circuit in Hare v. City of Corinth, Mississippi, 74 F.3d 633, 644-45 (5th Cir. 1996) (en banc), for purposes of determining whether a due process violation occurred. See Estate of Henson v. Wichita Cty., Tex., 795 F.3d 456, 462 (5th Cir. 2015) (noting that, "post-Hare, constitutional challenges by pretrial detainees may be brought under two alternative theories: as an attack on a 'condition of confinement’ or as an ‘episodic act or omission' ") (quoting Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009) (citation omitted)).
. Fourth Amended Complaint [Doc. # 134], at ¶¶ 66-68, 79; see also Plaintiff's Response to the Individual Capacity Defendants' Motions for Summary Judgment [Doc. # 190], at 33.
. The record reflects that Lambi treated Baughman in the Chronic Care Clinic on a total of three occasions: June 26, 2014; July 29, 2014; and June 29, 2016. See Lambi Aff. [Doc. # 179-5], at ¶¶ 7-9. Howard personally treated Baughman in the Chronic Care Clinic on ten occasions, including: April 22, 2014; September 22, 2014; October 22, 2014; January 22, 2015; April 28, 2015; July 28, 2015; October 30, 2015; November 16, 2015; February 15, 2016; and October 11, 2016. See Howard Aff. [Doc. # 179-6], at ¶ 6. Baugh-man does not specifically allege or point to any admissible evidence showing that Lambi or Howard personally denied him a finger-stick or any other type of treatment on these occasions. Baughman does not otherwise demonstrate that he was denied care with deliberate indifference in connection with any treatment that Lambi and Howard personally provided. Likewise, Baughman does not allege or show that Dr. Seale, Dr. Guice, or Davis personally provided him with medical care or that they were otherwise directly involved in any blood glucose monitoring that was conducted by medical providers under their supervision.
. See Madoff Report [Doc. # 190, Éx. 6], at 3; Seale Dep. [Doc. # 188, Ex. 2], at 66:13-75:3 (discussing standards).
. Guice Dep. [Doc. # 188, Ex. 1], at 122:16-124:5; Seale Dep. [Doc. # 188, Ex. 2], at 76:9-77:3.
. Seale Dep. [Doc. # 188, Ex. 2], at 83:4-14; see also Lambi Dep. [Doc. # 188, Ex. 3], at 86:3-88:21.
. Seale Dep. [Doc. # 188, Ex. 2], at 84:9-85:1.
. Id. at 89:23-90:3.
. Affidavit of Susan Morrey Morris, M.D. [Doc. # 181-8], at ¶ 8.
. See Medical Records [Doc. # 182] (under seal); Seale Aff. [Doc. # 181-3], ¶ 4 (summarizing care between April 3, 2014, through September 4, 2015); Howard Aff. [Doc. #179, Ex. 5], at 6-11 (summarizing treatment provided in the Chronic Care Clinic and by outside providers between 2014 and 2016, including results of Baughman's Ale tests).
. Blood Glucose for Steven Baughman [Doc. # 190, Ex. 23] at Bates No. HC/Baugh-man 7936-7942 (filed under seal).
. Plaintiffs Response to the Individual Defendants’ Motions for Summary Judgment [Doc. # 190], at 35.
. See Shulman Report [Doc. # 190, Ex. 26], at 10 (filed under seal) (explaining that tooth decay, "especially once the enamel is penetrated, generally progresses consistently, and the more time that passes before the tooth is treated (i.e., filled), the greater the likelihood that decay will progress, destroying tooth structure, possibly causing an abscess, and generally requiring the tooth to be extracted").
. See Morris v. Livingston, 739 F.3d 740, ” 746-47 (5th Cir. 2014) (upholding TDCJ’s authority to assess a $100 annual health care fee); see also Myers v. Klevenhagen, 97 F.3d 91 (5th Cir. 1996) (upholding the Harris County Sheriff's policy of charging non-indigent prisoners for medical services).
. Seale Dep. [Doc. # 188, Ex. 2], at 124:10-20.
. Id.
. Chin Dep. [Doc. # 188, Ex. 6], at 17:1-14.
. Id. at 18:15-17.
. Id. at 74:18-75-5, 76:1-77:5.
. See Shulman Report [Doc. # 190, Ex. 26], at 20-21 (filed under seal).
. Chin Dep. [Doc. # 188, Ex. 6], at 152:12-17, 153:9-10; HCSO Health Services Bureau Dental: Annual and Juvenile Exam Form [Doc. # 190, Ex. 14], at 1-2 (Bates No. HC/Baughman 5917) (filed under seal).
. Shulman Report [Doc. # 190, Ex. 26], at 31, 35.
. See Seale Dep. [Doc. # 188, Ex. 2], at 134:16-135:17, 150:18-23 (attributing to the dentists the practice of providing extractions only for indigent inmates with cavities); see also Chin Dep. [Doc. # 188, Ex. 6], at 35:5-8 (describing how he learned of the practice).
. There is evidence in the record that may call into question whether Baughman was indigent. The medical records reflect that Baughman threatened to sue, claiming that the dental care being offered was “unconstitutional” and that he had received a $27,000.00 settlement from prison officials in Oklahoma for this same issue. See Seale Aff. [Doc. # 179-3], at V 33. If an inmate is not indigent, prison officials can require him to pay for some or all of his medical and dental treatment. See Morris, 739 F.3d at 747 (citations omitted); see also Poole v. Isaacs, 703 F.3d 1024, 1026 (7th Cir. 2012) (observing that "the Eighth Amendment does not compel prison administrators to provide cost-free medical services to inmates who are able to contribute to the cost of their care”).
.See Chin Dep. [Doc. # 188, Ex. 6], at 152:4-153:10 (noting that tooth # 18 was not "a fillable tooth”); see also Shulman Report [Doc. # 190, Ex. 26], at 24, n. 44 (noting that tooth #18, which was indicated for extraction by Dr. Chin on May 29, 2014, had “deep decay” and may have been unsalvageable) and 31 (noting that tooth # 20 could have
. Although Baughman argues that extractions are not "treatment,” [Doc # 190], at p. 37, in reality it is course of treatment resorted to by many who are unable to afford more expensive alternatives. See Mary Jordan and Kevin Sullivan, The Painful Truth About Teeth, Wash. Post, May 13, 2017 (noting that millions of working poor Americans rely on charity clinics and hospital emergency rooms to treat painful and neglected teeth, many opting simply to have them pulled because they are unable to afford expensive root canals and crowns).
. Shulman Report [Doc # 190, Ex. 26], at 14.
. It is noted that typically it is a prisoner’s “pain and weight loss from having virtually no teeth” that constitutes a serious medical need for dentures. See Farrow, 320 F.3d at 1244. The defendants argue that Baughman cannot demonstrate deliberate indifference to a serious medical need because he has gained 50 pounds since he entered the Jail, going from 375 pounds at the time of intake in April 2014, to more than 425 pounds in August 2015, showing that Baughman does not have difficulty eating without dentures. There is conflicting evidence from Baughman’s dental expert, Dr. Jay Shulman, who notes that "chewing difficulty can actually cause an individual to gain weight.” Shulman Report [Doc. # 190, Ex. 26], at 8 (emphasis in original). Dr. Shulman explains that, in some cases, people suffering from “compromised dental status” avoid foods that are hard to chew, choosing instead processed foods that are high in carbohydrates, thus leading to weight gain. Id. at 8-9. Under these circumstances, Baughman’s weight gain is not dis-positive of whether he was denied care with deliberate indifference to a serious medical need in a manner that was objectively unreasonable under the circumstances. See Vasquez, 226 Fed.Appx. at 340 (indicating that dentures may not be denied solely on the grounds that an inmate has not lost weight because it is still possible to demonstrate that providers knew of, but disregarded, a serious medical need). But see Perkins v. TDCJ, 514 Fed.Appx. 488, 489 (5th Cir. 2013) (finding no deliberate indifference for delay in providing dentures where the inmate did not lose weight for three years after having his teeth pulled). Nevertheless, for the reasons set forth hereafter, the dispute about Baughman’s
.Chin Dep. [Doc. # 188, Ex. 6] at 142:16-143:10.
.Grievance # 15000 [Doc. # 190, Ex. 13], at Bates No. HC/Baughman 8336-8337.
.Id. at 144:9-146:3.
. Guice Dep. [Doc. # 188, Ex. 1], at 146:2-13, 150:14-22; Seale Dep. [Doc. # 188, Ex. 2], at 134:16-20.
. HCSO Manual of Policies ans Procedures for Health Services, No. J-E-06 [Doc. # 190, Ex. 28], at Bates No. HC/Baughmán 5729.
. Guice Dep. [Doc. # 188, Ex. 1], at 146:2-13; Seale Dep. [Doc. # 188, Ex. 2], at 134:16-135:17.
. Guice Dep. [Doc. # 188, Ex. 1], at 157:18-21.
. Id. at 146:2-24.
. Id. at 145:4-10.
. Id. at 144:4-20, 147:24-148:11.
. Id. at 163:6-164:3. •
. Seale Dep. [Doc. # 188, Ex. 2], at 141:2-5, 143:2-144:3.
. Id. at 144:8-146:9.
. Id. at 134:16-135:17.
. Id. at 146:15-147:5.
. Dental Services Clinic Monthly Report 2016 [Doc. # 190, Ex. 29], at Bates No. HC/Baughman 9357.
. Chin Dep. [Doc. # 188, Ex. 6], at 34:14-37:17; Harper Aff. [Doc. #183-2], at ¶2.
. Chin Dep. [Doc. # 188, Ex. 6], at 31:13— 32:7 (indicating that Dr. Chin and Dr. Harper were "on the same level'' and that the extent of Dr. Chin's supervisory function, if any, was limited to managing “patient flow”).
. Fourth Amended Complaint [Doc. # 134], at ¶¶ 62-63.
. Letter [Doc. # 190, Ex. 16], at Bates No. HG/Baughman 9340-9341.
. Davis Aff. [Doc. # 179-7], at ¶ 11 (referencing a Nutrition Note dated February 2, 2015). Baughman has claimed that the heart-healthy diet is not appropriate for patients with diabetes. See Fourth Amended Complaint [Doc. # 134], at ¶ 24. His own expert disputes this, however, noting that the heart-healthy diet with consistent carbohydrate content at each meal is optimum for patients such as Baughman, who suffer from diabetes. See Madoff Report [Doc. # 190, Ex. 6], at 9; see also Letter from Dr. Susan Morris ("Morris Letter”) [Doc. # 190, Ex. 7], at 2.
. Davis Aff. [Doc. # 179-7], at ¶ 11; Seale Aff. [Doc. # 179-3], at ¶ 12 (noting that Baughman's care was significantly complicated by his lack of compliance with recommended diet and consumption of commissary foods).
. Seale Aff. [Doc. # 179-3], at ¶ 12.
. Davis Aff. [Doc. # 179-7], at ¶ 11. Baugh-man’s commissary purchases reflect that he made repeated purchases of high calorie and high sodium sweets, starches, and snack foods that are entirely inconsistent with either a heart-healthy diabetic diet or the Atkins diet. See Morris Letter [Doc. # 190, Ex. 7], at 2.
. Davis Aff. [Doc. # 179-7] at ¶ 13.
. Id. at ¶ 14.
. Nutrition Note [Doc. # 190, Ex. 17], at Bates No. HC/Baughman 9318.
. Seale Aff. [Doc. # 179-3], at ¶ 32.
. Davis Aff. [Doc. # 179-7] at ¶ 16; Rossi Aff. [Doc. # 183-3] at 2.
. Fourth Amend. Compl. [Doc. # 134] at 16-18.
. Plaintiff's Response to Harris County’s Motion for Summary Judgment [Doc. # 188], at 13-29.
. Id. at 30-31.
. Defendant Harris County's. Motion for Summary Judgment [Doc. # 181], at ¶ 2.
. Defendant Harris County’s Motion for Summary Judgment [Doc. # 181], at ¶ 22.
. See Shulman Report [Doc. # 190., Ex. 26] at 31-32; Chin Dep. [Doc. # 190, Ex. 6], at 40:7-41:6 (noting that dentists at the Jail can identify periodontal disease, but cannot treat it because of “the amount of patients” and the small number of staff).
. Defendant Harris County’s Motion for Summary Judgment [Doc. # 181], at ¶ 24.
. Plaintiff’s Response to Harris County’s Motion for Summary Judgment [Doc. # 188],
. Guice Dep. [Doc. # 188, Ex. 1], at 28:7- . 17; Seale Dep. [Doc. # 188, Ex. 2], at 25:23-27:2.
. Guice Dep. [Doc. # 188, Ex. 1], at 160:20-163:16; Seale Dep. [Doc. #188, Ex. 2], at 48:7-21, 153:14-20, 184:6-15.
. Seale Dep. [Doc. # 188, Ex. 2], at 152:15-153:20.
.Seale Aff. [Doc. #179-3], at HV 27-29; Guice Aff. [Doc. # 179-4], at ¶¶ 5-8, 37-38. Of course, accreditation status, standing alone, is not dispositive of the constitutionality of medical care provided at a correctional facility. See Ruiz v. Johnson, 37 F.Supp.2d 855, 902 (S.D. Tex. 1999), rev’d on other grounds, Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001). Harris County argues, nevertheless, that it should be able to rely on the accreditation process and its regimen of inspections, both planned and unannounced, as one manner of providing notice of systemic problems that may need to be rectified by official means.
. Guice Dep. [Doc. # 188, Ex. 1], at 157:18-21; Seale Dep. [Doc. # 188, Ex. 2], at 141:2-5, 143:2-144:3.
. Seale Dep. [Doc. # 188, Ex. 1], at 126:12-127:19, 153:4-13. Dr. Chin likewise disputed at his deposition that two dentists were inadequate to meet the needs of the Jail’s fluctuating population. See Chin Dep. [Doc. # 188, Ex. 6], at 191:1-193:13.
. Fourth Amended Complaint [Doc. # 134] at ¶¶ 72-77.
. As noted previously, the Court dismissed with prejudice similar state law negligence claims lodged by Baughman against the individual defendants as precluded by an election-of-remedies provision found in § 101.106(c) of the Texas Civil Practice and Remedies Code. See Memorandum and Order dated October 21, 2016 [Doc. # 160], at 6-7.
. Plaintiff's Response to Harris County's Motion for Summary Judgment [Doc. # 188], at 7, 30-31.
. See Madoff Report [Doc. # 190, Ex. 6], at 9 (noting that the heart-healthy diet with consistent carbohydrate content at each meal is appropriate for patients who suffer from diabetes); see also Morris Letter [Doc. # 190, Ex. 7], at 2 (same).
Reference
- Full Case Name
- Steven Kurt BAUGHMAN, SPN 505318 v. Sheriff Adrian GARCIA
- Cited By
- 13 cases
- Status
- Published