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Harlan v. United States

United States District Court, D. South Dakota, Southern Division

December 1, 2016




         On 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.

         Three 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.

         For the 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.


         Harlan 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.

         I. Dental Care at FPC Yankton and BOP Dental Care Procedures.

         Beginning in October 2013, FPC Yankton learned that the facility's fulltime dentist was selected for a transfer to another BOP facility.[1] 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.[2]

         During 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, [3] 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.

         BOP 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 18-23, 2014.

         BOP 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.

         Dr. 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.

         II. Harlan's Dental Care at FPC Yankton.

         Harlan's 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 options.

         On April 15, 2014, Harlan submitted an electronic inmate request to RDH Fix, complaining of pain in his top left incisor.[4] 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.[5] During this conversation, HSA Woehl told Harlan to use over-the-counter pain relief to ease any pain.[6]

         Harlan's 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.[7]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.

         The 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.[8]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.

         On May 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.

         Harlan 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.

         As a 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.

         Harlan's 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[9] and a form of periodontitis.[10] 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.


         I. Harlan's Motion to Amend the Amended Complaint and Motion for Summary Judgment.

         Harlan 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.[11] See Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008).

         A. Legal Standard.

         A 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 Fed.R.Civ.P. 16(b)).

         Rule 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”).

         “What 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. . ...

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