United States District Court, W.D. Michigan, Southern Division
Robert J. Jonker
KENT UNITED STATES MAGISTRATE JUDGE.
se plaintiff, a former federal prisoner, filed this
action in the United States District Court for the Eastern
District of Michigan on February 18, 2015, under the Federal
Tort Claims Act, 28 U.S.C. § 2671 et seq.
(“FTCA”) and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 503 U.S. 388
(1971) against defendants United States of America (the
“government”) and Scott Kevin Dubois, D.D.S.
(“Dr. Dubois”). See Compl. (ECF No. 1).
After granting Dr. Dubois' motion for summary judgment,
setting a scheduling order and extending discovery
(see ECF Nos. 35, 36, and 40), that court granted
the parties' stipulation to transfer the case to the
Western District where plaintiff resides. See
Stipulation and Order (ECF No. 41). This matter is now before
the Court on the government's motion for summary judgment
(ECF No. 57).
plaintiff's second lawsuit in which he claims that the
Bureau of Prisons (“BOP”) failed to provide
adequate dental care. By way of background, plaintiff was
incarcerated at the Federal Correctional Facility in Elkton,
Ohio (“FCI Elkton”), released, and later
incarcerated at the Federal Correctional Facility in Milan,
Michigan (“FCI Milan”) for a supervised release
violation. The government's brief set forth a summary of
plaintiff's first malpractice action filed against the
BOP for dental treatment at FCI Elkton:
In August 2008, Mr. Edkins pleaded guilty in the U.S.
District Court for the Western District of Michigan to income
tax evasion in violation of 26 U.S.C. § 7201.
(U.S.A. v. Edkins, 05-cr-00151, dkt. # 36.) The
Court sentenced him to 41 months of imprisonment and three
years of supervised release. (U.S.A. v. Edkins,
05-cr-00151, dkt. # 52; Suydam Decl. ¶ 3 & Attach.
1, dkt. # 22-2, PageID.88 & PageID.91-96.) Mr. Edkins
served most of that term at FCI Elkton in Ohio. (Suydam Decl.
¶ 3 & Attach. 2, dkt. # 22-2, PageID.87 &
On his arrival at FCI Elkton, Mr. Edkins' dental
screening showed his oral hygiene was poor, he was missing
teeth, and he had multiple fillings. (Elkton Dental R., dkt.
# 22-7, PageID.189-197.) In November 2010, he had a tooth
extracted. (Id. at PageID.195-197.) Mr. Edkins was
released from FCI Elkton on March 17, 2011. (Suydam Decl.
Attach. 1, dkt. # 22-2, PageID.96; Suydam Decl. Attach. 2,
dkt. # 22-2, PageID.98.)
In November 2011, Mr. Edkins submitted an administrative tort
claim to the Bureau of Prisons' Northeast Regional Office
complaining of the dental care at FCI Elkton. (2011 Elkton
Claim, dkt. # 22-3, PageID.120.) He claimed that the Bureau
of Prisons' (“BOP”) neglect caused him pain
and the loss of two teeth, prevented him from working, and
would result in the loss of two more teeth in the near
future. (Id. at PageID.120, 122-123.) The BOP denied
Mr. Edkins' administrative claim in May 2012 because his
damages had been caused by pre-existing dental problems, and,
while at FCI Elkton, he had received sufficient dental care.
(2012 Elkton Denial, dkt. # 22-4, PageID.128.)
In March 2013, Mr. Edkins filed suit in the Eastern District
of Michigan, alleging that the dental staff at FCI Elkton had
failed to timely examine or clean his teeth and thereby
caused him pain, prevented him from working, and caused him
to lose four teeth. (E.D. Mich. No. 13-11364, dkt. # 1,
PageID.2.) The court dismissed the claim, and the Court of
Appeals for the Sixth Circuit affirmed its judgment. (6th
Cir. Ct. App. No. 14-1972.)
Brief (ECF No. 58, PageID.409-410).
deciding Dr. Dubois' motion for summary judgment, the
Court summarized the relevant facts of the present lawsuit
commencing with plaintiff's history at FCI Elkton:
Edkins is a former inmate of the BOP. (See Compl.,
ECF #1 at 4, Pg. ID 4.) Edkins claims that when he began
serving his sentence in 2009 at the Federal Correctional
Institution in Elkton, Ohio (“Elkton”), he
suffered from “chronic periodontal disease.”
(Compl., ECF #1 at 4, Pg. ID 4.) Edkins' medical records
from Elkton show that R. Hingham, D.D.S. removed one of
Edkins' teeth in November 2010 because it was
“hopelessly periodontally involved.” (ECF #22-2
at 7, Pg. ID 195.) A few months later, in March 2011, Ekdins
[sic] was released from Elkton on supervised release.
(See ECF #22-2 at 2, Pg. ID 88.)
While Edkins was on release, he sought dental treatment from
M. VanderLaan, D.D.S. (“Dr. VanderLaan”), a
private dentist with the Cherry Street Dental Clinic.
(See ECF #22-3 at 3, Pg. ID 122.) Dr. VanderLaan
noted that Edkins “may benefit from seeing a
periodontist for periodontal [disease]” and recommended
that Edkins see a dentist every three months. (Id.
at 6, Pg. ID 125.)
In January 2012, Edkins violated the terms of his supervised
release and was returned to the BOP's custody.
(See ECF #22-2 at 2, Pg. ID 88.) Edkins served the
remainder of his sentence at the Federal Correctional
Institution in Milan, Michigan (“Milan”) from
January 25, 2012 through April 23, 2013. (See id.)
While Edkins was incarcerated at Milan, he encountered Dr.
Dubois. On January 31, 2012, Dr. Dubois performed a full
dental screening pursuant to BOP policy. (See ECF
#23-1 at 4, Pg. ID 207; ECF #22-6 at 2, Pg. ID 140.) Although
Dr. Dubois noted that Edkins' “oral hygiene was
found to be poor, ” he concluded that Edkins' risk
for periodontal disease was “low.” (ECF #22-6 at
2-3, Pg. ID 140-41; see also ECF #22-5 at 1, Pg. ID 131.) Dr.
Dubois attested that he followed the BOP's Clinical
Practice Guidelines with respect to Edkins' dental care
following the exam. (See ECF #22-6 at 3, Pg. ID
141.) Under those guidelines, “the protocol for
patients with low periodontal risk is an annual exam by a
general dentist and prophylaxis as needed.”
(Id.; see also id. at 17, Pg. ID 155.)
Edkins' dental records show that he received treatment in
accordance with these guidelines. For example, he received
oral hygiene instruction in May and June of 2012.
(See ECF #22-5 at 3-6, Pg. ID 133-36.) And on July
16, 2012, Edkins was given complete prophylaxis, which
included “scaling and root planing of all four
quadrants.” (ECF #22-6 at 3, Pg. ID 142; ECF #22-5 at
7, Pg. ID 137.) Moreover, Edkins was informed that if he
suffered from “any [ ] urgent dental concerns, ”
he would be permitted to “sign up for dental sick
call.” (ECF #22-2 at 33, Pg. ID 119.) However, there is
no evidence in the record that Edkins complained to the BOP
staff that he suffered from dental pain or experienced a
dental emergency while he was housed at Milan. (See
ECF #22-6 at 3, Pg. ID 141.)
April 23, 2013, Edkins was released to a half-way house, and
he completed his sentence on August 16, 2013. (Se ...