United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
E. SCHREIER UNITED STATES DISTRICT JUDGE
February 5, 2015, plaintiff, Kenneth Harlan, having properly
exhausted his administrative remedies, filed his complaint
against defendant, the United States, seeking to recover
under the Federal Tort Claims Act (FTCA), 28 U.S.C. §
1364. Harlan alleges that he received negligent dental
treatment from federal employees who were acting within the
scope of their employment. Docket 1. Harlan further alleges
that the dental care he received between April and June 2014
was deliberately indifferent to his medical needs.
Id. On August 14, 2015, Harlan moved to amend his
complaint. Docket 17. This court granted Harlan's motion
to amend the complaint on September 11, 2015, because no
objection was filed and good cause was shown. Docket 18.
motions are pending before the court. Harlan moves for
summary judgment on all claims within his amended complaint.
Docket 23. The United States moves to dismiss the complaint
for lack of subject matter jurisdiction and failure to state
a claim upon which relief can be granted, and cross-moves for
summary judgment. Docket 28. In response, Harlan requests
leave to amend both his amended complaint and his motion for
summary judgment. Docket 35. The United States opposes
Harlan's motion to amend his amended complaint and his
motion for summary judgment. Docket 37.
following reasons, the court denies Harlan's motion to
amend his amended complaint and his motion for summary
judgment and grants the United States's motion to
dismiss. The United States's cross-motion for summary
judgment and Harlan's motion for summary judgment are
denied as moot.
is currently an inmate in the Bureau of Prison's (BOP)
Yankton Federal Prison Camp (FPC Yankton) located in Yankton,
South Dakota, and has been an inmate at FPC Yankton for all
times relevant to this matter.
Dental Care at FPC Yankton and BOP Dental Care
in October 2013, FPC Yankton learned that the facility's
fulltime dentist was selected for a transfer to another BOP
facility. As a result of the impending transfer of
its full-time dentist, FPC Yankton's human resources
department immediately began to seek a replacement dentist.
The process of hiring a full-time replacement dentist to work
at FPC Yankton lasted from October 2013 to August 2014, when
a full-time contract dentist was hired.
the period when FPC Yankton lacked a full-time dentist, the
prison provided inmates with dental care through a
combination of visits from other BOP dentists, as Temporary
Duty (TDY) dentists,  or having another BOP dentist provide
remote oversight as a supervisor to the on-site dental
hygienist. When providing remote oversight, a supervisory
dentist relies on the on-site hygienist to serve as
“the eyes and ears of the supervising dentist.”
Docket 31 at 3, ¶ 7. The job requirements of the on-site
hygienist, when working under a remote supervisory dentist,
include listening to an inmate's complaints, taking
x-rays when necessary, and entering a note into the BOP's
electronic medical records system so that the supervisory
dentist “can assess the complaint, triage the inmate,
and establish a treatment plan.” Id.
dentist Dr. Donald Ross, Regional Chief Dentist, provided
remote dental oversight to FPC Yankton and FPC Yankton's
on-site registered dental hygienist (RDH) Sheryl Fix, at all
times relevant to this dispute. During the months of May 2014
through August 2014 FPC Yankton attempted to solicit other
BOP dentists to visit FPC Yankton as TDY dentists.
Unfortunately, due to late cancellations by other BOP
dentists, the only dentist actually on-site at FPC Yankton
was Dr. Ross, who visited from May 5-10, 2014, and August
policy directs that dental treatment qualifies as either
“emergent” or “non-emergent.”
Id. at 2, ¶ 5. Emergent dental care
“includes treatment for relief of severe dental pain,
traumatic injuries, acute infections, sedative fillings,
extraction of non-restorable teeth, and gross debridement of
symptomatic areas.” Id. When dental treatment
qualifies as emergent, the goal is “to stabilize the
patient's immediate, urgent dental need pending a more
permanent treatment plan.” Id. Conversely,
“non-emergent” dental care is considered elective
treatment. Id. Because of the differences in dental
treatment that result from a designation as
“emergent” and “non-emergent, ”
objective triage procedures are used to evaluate whether a
purported dental emergency requires immediate treatment or
can be scheduled for a later time. Id.
Ross further utilizes a personal system to triage and
prioritize the dental needs of inmates when providing remote
dental oversight to BOP facilities. Id. at 4, ¶
9. This system is designed to ensure that dental patients
with the most pressing treatment needs are examined by either
Dr. Ross or another TDY dentist before inmates who only have
routine dental issues. Id. Assessments classified as
“Priority 1” under Dr. Ross's system are not
necessarily an emergent or urgent dental need. Id.
Instead, “Priority 1” designations are commonly
given to inmates with cavities or drainage. Id. A
classification of “Priority 2” is given to
inmates with a missing filling but who previously had a root
canal to remove the nerve. Id. A “Priority
3” classification applies to inmates with broken
dentures or who have no pain. Id. Dr. Ross used this
system when reviewing Harlan's claims of tooth pain.
Harlan's Dental Care at FPC Yankton.
complaints of tooth pain began in April 2014, and lasted
until June 2014, when Harlan's tooth was examined by a
community dentist. Throughout this period, Harlan made
several formal and informal complaints about his tooth pain.
Harlan also had a number of conversations with FPC Yankton
officials regarding his tooth pain and potential treatment
April 15, 2014, Harlan submitted an electronic inmate request
to RDH Fix, complaining of pain in his top left
incisor. In response to his request, Harlan was
informed on April 18, 2014, that he was added to the routine
waiting list for dental care and that he would need to go to
sick call if he experienced severe pain. Harlan's next
complaints of tooth pain occurred on May 14, 2014, when
Harlan filed a sick call request, and May 15, 2014, when
Harlan spoke with Christina Woehl, FPC Yankton's Health
Services Administrator (HSA), about his tooth
pain. During this conversation, HSA Woehl told
Harlan to use over-the-counter pain relief to ease any
tooth was examined by RDH Fix on Monday, May 19, 2014. During
the examination, Harlan complained of tooth pain in his top
left incisor and stated that the pain developed several days
ago. Harlan subjectively rated his pain as 8 out of 10 on a
pain scale. RDH Fix took an x-ray of Harlan's top left
incisor, that she preliminarily read as presenting a
fractured tooth. During this examination, RDH Fix informed
Harlan that the next scheduled visit to FPC Yankton by a TDY
dentist was July 2014. Upon review of RDH Fix's clinical
notes, Dr. Ross classified the x-ray as presenting distal
caries.Because of this assessment, Dr. Ross
classified Harlan as “Priority 1 with TDY dentist for
restorative evaluation.” See Docket 31-2 at
20. Dr. Ross also indicated that Harlan could continue to
take over-the-counter pain medication for pain management.
pain experienced by Harlan continued to increase after his
initial examination by RDH Fix. Due to his increasing tooth
pain, Harlan had a number of informal conversations with
prison officials at FPC Yankton between May 20, 2014, and his
next examination by RDH Fix on May 28, 2014.Harlan's
amended complaint also alleges that between these dates he
was again told that FPC Yankton would not have an on-site
dentist until July. Docket 19 at 3.
27, 2014, Harlan filed an administrative informal resolution
form in order to ease his tooth pain. In the informal
resolution form, Harlan complained about having a
“broken tooth” and stated that waiting until July
to see a dentist was “unreasonable.” Docket 1-15.
Harlan also specifically requested “to be seen by a
dentist immediately or sent to another prison that has a
dentist.” Id. Due to the lack of a full-time
dentist at FPC Yankton, Unit Manager Kathy Nelson informed
Harlan on May 28, 2014, that his request was referred to the
Chief Dental Officer in the North Central Region (i.e. Dr.
Ross). Docket 1-16.
received another examination by RDH Fix on May 28, 2014.
During this examination, Harlan subjectively rated his pain
as 10 out of 10 on a pain scale. Due to the increase in
Harlan's pain, Dr. Ross prescribed Harlan prescription
pain medication and antibiotics. Harlan was informed about
the prescriptions on May 29, 2014. Although Harlan received
the prescription medication, he informed FPC Yankton dental
that the medication prescribed did “little to
relieve” his pain. Docket 32-1 at 33. To that end,
Harlan again requested to have his tooth examined by a
community dentist. Id. Despite Harlan's pain, he
was directed by RDH Fix on May 30, 2014, to continue to take
his medication as prescribed.
result of his continued pain, Harlan filed a request for a
formal administrative remedy on May 29, 2014. FPC
Yankton's HSA office sent Harlan a receipt on June 6,
2014, acknowledging that Harlan had filed a request seeking a
formal administrative remedy. See Docket 1-17. In an
effort to meet that request, HSA Woehl met with Harlan to
discuss his pain and determine if he would be willing to
submit a consultation request to see a community dentist. Dr.
Ross approved Harlan's request to be seen by a community
dentist on June 9, 2016. See Docket 31-2 at 14.
tooth was examined by a community dentist on June 16, 2014.
The community dentist performing the examination, Dr.
Reardon, informed Harlan that he had irreversible
pulpitis and a form of periodontitis. Docket 31-2
at 30. Dr. Reardon also informed Harlan that “there was
a lot of decay and the tooth may require extraction depending
on what his dentist says.” Id. Dr. Ross
visited FPC Yankton in August 2014 and examined Harlan on
August 21, 2014. Docket 31-2 at 25. During that visit, Dr.
Ross performed a root canal and composite restoration on
Harlan's tooth. Id. at 26.
Harlan's Motion to Amend the Amended Complaint and
Motion for Summary Judgment.
requests leave from the court to amend his amended complaint
and his pending motion for summary judgment. Docket 35.
Through his motion to amend, Harlan asks the court to
consider exercising jurisdiction under both the FTCA and
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Id. Because
Harlan's motion to amend was filed after the date for
amending the pleadings as provided in the court's
scheduling order, Docket 16, the amendment implicates both
Rules 15 and 16 of the Federal Rules of Civil
Procedure. See Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715 (8th Cir. 2008).
motion to amend a party's pleadings is ordinarily
governed by Rule 15 of the Federal Rules of Civil Procedure.
Under Rule 15, a party may amend a pleading with “the
court's leave, ” and the Rule directs the court to
“freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). But “[i]f a party files for
leave to amend outside of the court's scheduling order,
the party must show cause to modify the schedule” in
accordance with Rule 16(b). Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008) (citing
16(b) is designed to guide the “issuance and
modification of pretrial scheduling orders and provides that
‘[e]xcept in categories of actions exempted by local
rule, the district judge . . . must issue a scheduling order,
' which ‘must limit the time to join other parties,
amend the pleadings, complete discovery, and file
motions.' ” Sherman, 523 F.3d at 715
(quoting Fed.R.Civ.P. 16(b)(1), 16(b)(3)(A)) (alterations in
original). Under Rule 16(b), “[a] schedule may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). The “good
cause” requirement of Rule 16(b) necessitates a
stronger showing that the movant is entitled to relief than
“the more liberal standard” of Rule 15(a).
Sherman, 532 F.3d at 716 (citing Popoalii,
512 F.3d at 497). “Thus, a moving party must first make
the requisite [good cause] showing. Even then the district
court retains discretion as whether to grant the
motion.” Bradford v. DANA Corp., 249
F.3d 807, 809 (8th Cir. 2001) (citation omitted) (explaining
that “[a]s a vehicle designed to streamline the flow of
litigation through our crowded dockets, we do not take
[scheduling] orders lightly, and will enforce them”).
constitutes good cause sufficient to justify the modification
of a scheduling order necessarily varies with the
circumstances of each case.” 6A Charles Alan Wright
& Arthur R. Miller, Federal Practice &
Procedure, § 1522.2 (3d. ed.). In Sherman,
the Eighth Circuit explained the contours of the “good
cause” standard as follows:
The primary measure of good cause is the movant's
diligence in attempting to meet the order's requirements.
Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006);
see also Fed. R. Civ. P. 16(b), advisory committee
note (1983 Amendment) (“[T]he court may modify the
schedule on a showing of good cause if it cannot reasonably
be met despite the diligence of the party seeking the
extension.”). While the prejudice to the nonmovant
resulting from modification of the scheduling order may also
be a relevant factor, generally, we will not consider
prejudice if the movant has not been diligent in meeting the
scheduling order's deadlines. . ...