United States District Court, E.D. Virginia, Alexandria Division
Earl Turner, a Virginia inmate proceeding pro se, filed this
civil rights action pursuant to 42 U.S.C. § 1983.
alleging that he suffered deliberate indifference to his
serious medical needs that resulted in his loss of a tooth.
The matter is presently before the Court on Motions for
Summary Judgment filed separately by defendants Wyatt Ruffin,
D.D.S., and Mary Mayhue. RDA. Also pending are a Motion for
Default Judgment by the plaintiff and a Motion for Leave to
File Out of Time Response by defendant Mayhue. For the
reasons which follow, plaintiffs Motion for Default Judgment
will be denied, defendant May hue's Motion for Leave to
File Out of Time Response will be granted, and both Motions
for Summary Judgment will be granted.
an inmate confined at Sussex II Slate Prison ("Sussex
II"). commenced this lawsuit in May, 2016, alleging that
he requested dental service for a tooth from which a filling
had fallen out on December 18. 2014, Plaintiff saw dentist
Wyatt Ruffin on February 20, 2015, and allegedly was
scheduled for a restorative procedure on the tooth. However,
plaintiff was not seen again until August 3, 2015, some 24
weeks later, and by then, the tooth was unsalvageable and had
to be extracted. Plaintiff named Dr. Ruffin and Mary Mayhue,
a registered dental assistant ("RDA") as
defendants, and as relief he sought monetary damages and
injunctive relief mandating improved dental care for Virginia
December 13, 2016, defendant Dr. Ruffin filed a Motion for
Summary Judgment with a supporting memorandum of law and
exhibits, and supplied plaintiff with the notice required by
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
and Local Civ. R. 7(J). (Dkt. No. 17-20) Plaintiff filed a
response in opposition to the motion on January 11, 2017.
(Dkt. No. 28).
on December 19, 2016, plaintiff moved for the entry of a
default judgment against defendant Mayhue, on the ground that
she had failed to file an answer or other responsive pleading
in accordance with the Notice of Lawsuit and Request for
Waiver of Service. (Dkt. No. 21) Two days later, Mayhue,
through counsel, filed her Opposition to Motion for Entry of
Default Judgment. (Dkt. No. 23) In it, counsel explained that
he had been retained by the Virginia Division of Risk
Management ("DRM") to represent Dr. Ruffin, and a
Motion for Summary Judgment was timely filed on Ruffin's
behalf. However, at the time the Notices of Lawsuit were
issued, Mayhue was no longer employed at Sussex II, and DRM
accordingly sent her the Notice of Lawsuit along with a
Former Employee's Request for Coverage. Due to a
miscommunication Mayhue did not receive the documents until
December 20, 2016, and at that time counsel was appointed to
represent her as well as Dr. Ruffin. The following day
counsel filed both the Opposition to Motion for Entry of
default as well as a Motion for Leave to File an Out of Time
Response to the Amended Complaint. (Dkt. No. 24) Under these
circumstances, and mindful both that the Fourth Circuit Court
of Appeals strongly favors a policy that cases be decided on
the merits, United States v. Shaffer Equip. Co., 11
F.3d 450 453 (4th Cir. 1993), and that the minimal delay in
Mayhue's filing of a responsive pleading caused plaintiff
to suffer no prejudice, Wilson v. Turner, 2014 WL
4426126 (D. Md. Sept. 2, 2014), defendant Mayhue's Motion
for Leave to File an Out of Time Response will be granted,
and plaintiffs Motion for Entry of Default Judgment against
Mayhue will be denied.
January 30, 2017, Mayhue filed a Motion for Summary Judgment
with a supporting memorandum, and provided plaintiff with the
appropriate Roseboro notice. (Dkt. No. 29-31)
Plaintiff submitted a response in opposition to the motion on
February 24, 2017. (Dkt. No.33) Accordingly, this matter is
now ripe for disposition.
Standard of Review
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). The moving party bears the
burden of proving that judgment on the pleadings is
appropriate. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (moving party bears the burden of persuasion
on all relevant issues). To meet that burden, the moving
party must demonstrate that no genuine issues of material
fact are present for resolution, Id. at 322. Once a
moving party has met its burden to show that it is entitled
to judgment as a matter of law, the burden then shifts to the
non-moving party to point out the specific facts which create
disputed factual issues. Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 248 (1986); Matsushita
Electrical Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In evaluating a motion
for summary judgment, a district court should consider the
evidence in the light most favorable to the non-moving party
and draw all reasonable inferences from those facts in favor
of that party. United States v. Diebold. Inc., 369
U.S. 654, 655 (1962). Those facts which the moving party
bears the burden of proving are facts which are material.
"[T]he substantive law will identify which facts are
material. Only disputes over facts which might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment."
Anderson, 477 U.S. at 248. An issue of material fact
is genuine when, "the evidence ., . create[s] [a] fair
doubt; wholly speculative assertions will not suffice."
Ross v. Communications Satellite Corp., 759 F.2d
355, 364 (4th Cir. 1985). Thus, summary judgment is
appropriate only where no material facts are genuinely
disputed and the evidence as a whole could not lead a
rational fact finder to rule for the non-moving party.
Matsushita, 475 U.S. at 587.
following material facts are undisputed. Dr. Ruffin is
employed by the Virginia Department of Corrections
("VDOC") and is the only dentist at Sussex II. Dkt.
No. 19, Ex. 1, Ruffin Aff. ¶¶ 1, 3. The facility
houses approximately 1250 inmates, and in his five-day
workweek Dr. Ruffin sees about 50 inmates, including all new
inmates within 30 days of their arrivals. The average wait
time for routine dental services can span months, depending
on the demands on Dr. Ruffin's time and the specific
nature of the required services. Id., ¶ 3.
scheduled appointment with Dr. Ruffin on February 20, 2015,
plaintiff complained of sensitivity in tooth # 21. Prior to
the appointment, Dr. Ruffin had reviewed plaintiffs dental
records, and noted that the problem with plaintiffs tooth #
21 had been ongoing for many years. Dentists who had preceded
Dr. Ruffin at Sussex II had filled tooth # 21 with DO Amalgam
in October, 2006, and had refilled it with the same substance
in February, 2010 and October, 2011. In March, 2013, after
his arrival at Sussex II, Dr. Ruffin saw plaintiff and
measured a 9-mm pocket between plaintiffs tooth # 20 and
tooth #21, which indicated advanced periodontal disease. In
June, 2013, Dr. Ruffin replaced the earlier restoration of
tooth #21 with a DO Composite. Id., ¶ 4.
plaintiffs February 20, 2015 appointment, Dr. Ruffin
determined that recurrent decay had occurred in tooth # 21
due to poor oral hygiene, and that plaintiff should return
for a restorative procedure. Until the decay was removed Dr.
Ruffin would be unable to determine if the tooth could be
restored or if it would require extraction. Id.,
returned to the dental clinic on August 3, 2015. When Dr.
Ruffin removed the decay from tooth # 21 he saw that it had a
carious exposure, or uncovering of the tooth pulp, and
accordingly he recommended extraction of the tooth. His
determination that the tooth could not be salvaged was based
on three factors: (1) the carious exposure; (2) there was
insufficient tooth structure remaining to hold a filling; and
(3) there was advanced bone loss associated with the tooth.
Dr. Ruffin informed plaintiff of these findings and extracted
the tooth. Id., ¶ 6.
the period between plaintiffs appointments on February 20 and
August 3, 2015, he never requested any pain medication or
emergency or urgent dental treatment from Dr. Ruffin.
Id., ¶ 7. Dr. Ruffin attests that "[i]t
takes years for a tooth to decay to the terrible condition in
which [he] found plaintiffs tooth #21, " and the
"six-month wait in between plaintiffs February 2015
appointment and his return to the clinic on ...