Gonzales v. Brevard

531 F. Supp. 2d 1019, 2008 U.S. Dist. LEXIS 6095, 2008 WL 239182
CourtDistrict Court, W.D. Wisconsin
DecidedJanuary 29, 2008
Docket3:07-cr-00144
StatusPublished
Cited by4 cases

This text of 531 F. Supp. 2d 1019 (Gonzales v. Brevard) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzales v. Brevard, 531 F. Supp. 2d 1019, 2008 U.S. Dist. LEXIS 6095, 2008 WL 239182 (W.D. Wis. 2008).

Opinion

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

This is a civil action for monetary and declaratory relief brought under 42 U.S.C. § 1983. Plaintiff Edwin Gonzales contends that defendants Robert Brevard, Sue Ward and Steve Helgerson violated his Eighth Amendment rights when they were deliberately indifferent to his serious dental health needs. At all times relevant to this case, plaintiff was a prisoner incarcerated at the Columbia Correctional Institution in Portage, Wisconsin.

*1022 Now before the court is defendants’ motion for summary judgment. Because plaintiff has failed to adduce sufficient evidence that defendants were deliberately indifferent to his dental health care needs, I will grant defendants’ motion for summary judgment. Unfortunately, I had to disregard all of plaintiffs attempts to dispute certain of defendants’ proposed findings of fact because plaintiff did not follow this court’s summary judgment procedures. In particular, plaintiff responded to certain facts defendants proposed by telling the court his version of what did or did not happen. However, plaintiffs statements are not followed by citations to evidence in the record to support them. To be treated as evidence, testimonial statements such as those plaintiff made must be set forth in an affidavit that is properly notarized or in which statements are declared to be true under penalty of perjury as 28 U.S.C. § 1746 allows. Plaintiff did not submit such an affidavit.

In some instances, plaintiff tries to dispute defendants’ proposed facts by citing to exhibits attached to his complaint. However, these “exhibits” are not evidence because they are not authenticated. To be admissible, the documents would have to have been accompanied by an affidavit of the person who has custody of the documents stating what those documents are.

In any event, even if plaintiff had submitted a proper affidavit and authenticated exhibits, his evidence would have been insufficient to raise a question of material fact whether defendants were deliberately indifferent to his serious dental health needs.

For the purpose of deciding this motion, I find the following facts to be material and undisputed.

UNDISPUTED FACTS

Plaintiff Edwin Gonzales is a Wisconsin inmate incarcerated at the Columbia Correctional Institution in Portage, Wisconsin. Defendants Robert Brevard, Sue Ward and Steve Helgerson were employees of the Department of Corrections at all times relevant to this case.

Defendant Brevard received a D.D.S. from Marquette University in 1971. He is licensed to practice dentistry in Wisconsin, and has been so licensed since 1971. Defendant Brevard has been employed by the state of Wisconsin since 1993, and is employed by the Department of Corrections as a dentist. In this position, he has the duties and responsibilities of attending to the professional management of dental services at Department of Corrections institutions, including Columbia Correctional Institution and New Lisbon Correctional Institution.

Defendant Ward was employed by the Department of Corrections as a Nurse Clinician 2 in the Health Services Unit at Columbia Correctional Institution. In defendant Ward’s capacity as Nurse Clinician, her duties included, but were not limited to, responsibilities of patient assessment and treatment, assisting the physician in providing medical services, management of medications, provision of emergency care and maintenance of medical records.

Defendant Helgerson is employed by the Department of Corrections as a Nurse Clinician 2 in the Health Services Unit at Columbia Correctional Institution. In defendant Helgerson’s capacity as Nurse Clinician, his duties include, but are not limited to, responsibilities of patient assessment and treatment, assisting the physician in providing medical services, management of medications, provision of emergency care and maintenance of medical records.

At Columbia Correctional Institution, inmates may request medical attention by submitting a Health Services Request to *1023 the Health Services Unit. If an inmate believes he needs to be seen right away, he may go to sick call. Sick call means that an inmate should be seen by nurses so that they can determine if the inmate should be seen by a doctor.

On December 22, 2005, defendant Bre-vard performed surgery on plaintiff to extract his #2 tooth. The tooth had root decay and was non-restorable, and the root was fractured at the decay site. Defendant Brevard performed what is known as a “flap procedure.” In a flap procedure, a section of the gums is pulled back to clean the roots of the teeth and repair damaged bone, if necessary. A flap procedure is necessary when severe gum disease (perio-dontitis) has damaged the bones that support the teeth. If good dental care is maintained after the surgery, the flap procedure should help stop gum disease. The gums should become pink and healthy again.

When defendant Brevard extracted plaintiffs tooth, the bone was in poor condition because of a long term infection. It disintegrated while defendant Brevard was dislocating the tooth. This happens on upper molars fairly often. Further, at the time of the extraction, the tooth’s roots extended into the sinus cavity. This left a large socket hole into the sinus upon removal of the tooth. This is not an uncommon occurrence.

After plaintiffs flap procedure, defendant Brevard packed the oral antial opening with Surgicel, which forms a good clot. Surgicel is commonly used instead of sutures when there is a small opening, such as that caused by the extraction of a single tooth. Defendant Brevard also packed the oral antial opening with Albogyl, which prevents infection and provides pain relief, and instructed plaintiff on how to manage the opening.

On December 26, 2005, defendant Ward saw plaintiff because he complained he was spitting up blood. Plaintiff told Health Services Unit staff he had undergone a tooth extraction on December 22, 2005. Defendant Ward noted oozing blood in plaintiffs upper right molar area. She gave plaintiff a moist gauze for gentle pressure and a light salt water swish. She made a dentist appointment for plaintiff and gave him a one-day work restriction.

On December 27, 2005, defendant Hel-gerson saw plaintiff for persistent bleeding from the extraction site. Defendant Hel-gerson noted ongoing, active bleeding. He concluded plaintiff probably needed a suture and recommended sending plaintiff to the local emergency room dentist or to Dodge Correctional Institution if a dentist was unavailable at the emergency room. Plaintiff refused to see defendant Brevard for treatment. Heath Services Unit staff told plaintiff that this was not a good decision and that he needed to be seen by a dentist.

Later that day, plaintiff was bleeding from his mouth and he lost consciousness. Emergency Medical Services staff transported plaintiff to the Divine Savior Hospital emergency room. Emergency room staff noted active bleeding from plaintiffs mouth.

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Bluebook (online)
531 F. Supp. 2d 1019, 2008 U.S. Dist. LEXIS 6095, 2008 WL 239182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-brevard-wiwd-2008.