United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI, UNITED STATES DISTRICT JUDGE
Lee Anderson, II, a Virginia inmate proceeding pro se,
commenced this civil action pursuant to 42 U.S.C. §
1983. Plaintiff complains about the dental treatment provided
by Dr. Philip H. Witherspoon, the former dentist at the
Augusta Correctional Center ("ACC"). Dr. Witherspoon
filed a motion for summary judgment, to which Plaintiff
responded and filed his own motion for summary judgment.
After reviewing the record, the court denies the parties'
motions for summary judgment without prejudice, orders Dr.
Witherspoon to file a new motion for summary judgment, and
refers the matter for a report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B).
Witherspoon first saw Plaintiff at ACC on May 22, 2014,
because Plaintiff experienced pain in his mouth and thought a
filling fell out of tooth number 4, 5, or 6. Dr. Witherspoon
examined Plaintiff and determined that tooth number 4 was
missing, that tooth number 5 had an intact filling, and that
tooth number 6 was worn but did not show evidence of having
ever been filled. In contrast to Plaintiffs complaint, Dr.
Witherspoon did not find a hole where a filling had fallen
informal complaint dated May 26, 2014, Plaintiff alleged that
a medical doctor had told Plaintiff that he could see a nerve
ending in a hole in one of Plaintiff s teeth. Dr. Witherspoon
responded on May 28, 2014, stating, "There is no record
of a physician noting that you have a hole in a tooth."
5, 2014, Plaintiff filed a request for a dental appointment,
stating, "[H]ave a gum infection or something it's
painful. Please help." Dr. Witherspoon responded on July
7, 2014, saying, "I will pass your req[uest] to [staff]
to schedule you for evaluation/treatment. Do you need pain
medication?" Plaintiff does not allege that he requested
Witherspoon examined Plaintiff again on July 10, 2014, for
his complaint about a gum infection around tooth numbers 5
and 6. Dr. Witherspoon did not observe any clinical pathology
and noted his impression of sinusitis.
appointment on August 18, 2014, Plaintiff complained that
tooth number 11 was broken. Dr. Witherspoon examined
Plaintiff and found the tooth was intact.
December 27, 2014, Plaintiff requested a dental appointment
to "have a few bad teeth that needs fixed [sic] ASAP
painful." Dr. Witherspoon responded on December 29,
2014, noting that Plaintiff would be scheduled for an
Dr. Witherspoon would see Plaintiff at their next
appointment, Plaintiff and his cellmate extracted Plaintiffs
lower right wisdom tooth on January 9, 2015, because
Plaintiff thought it was infected. "We used 2 pair of
unsanitary fingernail clippers[, ] several large spoons from
chowhall[, ] several big pens[, ] and many long strands of
nylon[.] Once out of [the] jaw bone, the roots were holding
it in where cellmate wrapped nylon around the roots and
yanked it out. It was a most painful torture Fv[e] ever had
to experience with a bloody mess looking like a crime
scene/battlefield." Plaintiffs face allegedly developed
bruises as a result of the extraction.
January 22, 2015, Plaintiff presented to the dental
department wanting his "bad teeth fixed, " but he
had no specific complaint. Dr. Witherspoon determined that
Plaintiffs exam data was out of date and that an exam should
be scheduled. Plaintiff does not allege that Dr. Witherspoon
examined his mouth or that he told Dr. Witherspoon about the
extraction from two weeks earlier.
February 25, 2015, Plaintiff presented for an exam and
complained that he had "intense pain" from a
"split tooth." Dr. Witherspoon says that Plaintiff
refused pain medication. Dr. Witherspoon did not observe a
split tooth but advised Plaintiff that tooth number 11 was
worn from grinding, the opposing tooth was in contact with
number 11, and no treatment was indicated. Plaintiff does not
allege that he told Dr. Witherspoon about the extracted
wisdom tooth from nearly seven weeks earlier. Dr. Witherspoon
noted in the medical record that Plaintiff was argumentative
and uncooperative during the exam, and Plaintiff alleges that
Dr. Witherspoon said, "If you don't close your mouth
I'm going to put my foot in it." The appointment on
February 25, 2015, was Dr. Witherspoon's last contact
with Plaintiff because, according to Plaintiff, Dr.
Witherspoon was fired soon after their last appointment.
alleges that on March 5, 2015, a medical doctor examined,
inter alia, his mouth, noting that he has a broken
right upper tooth and a gum infection. Plaintiff further
alleges that on March 15, 2015, a new dentist at ACC replaced
a filling that Dr. Witherspoon said was not missing.
Plaintiff argues that, had Dr. Witherspoon identified the