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UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOEY DEARDUFF, NICHOLAS

BAILEY, MELVIN BROWNES,

TIMOTHY BROWNELL, TIMOTHY

FLESSNER, JAMES GUNNELS, 

LEON MEANS, JOHN PORTER,

ANTHONY RICHARDSON, CAROL

ROMAN, BRYAN SLONE and TINA

STOLL, on behalf of themselves and all

other similarly situated,

Plaintiffs,

vs. Case No. 14-11691-LJM-MKM

Hon. Laurie J. Michelson

HEDI WASHINGTON, Director, Maj. Judge Mona Majzoub

Michigan Department of Corrections,

and JONG CHOI, Dental Regional

Director, they are sue in their official 

capacities,

Defendants.

__________________________________/

FOURTH AMENDED CLASS ACTION COMPLAINT

FOR DECLARATORY AND INJUNCTIVE RELIEF

PARTIES AND FACTS

1. Plaintiff JOEY DEARDUFF, 732738 (hereafter Dearduff) is/was at 

all times relevant a prisoner confined with the Michigan Department of Corrections 

(hereafter MDOC) who sought dental care that was denied or delayed in violation 

of the Eighth Amendment. In December 2013, Dearduff requested dental 

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treatment including partial dentures (“partials”) due to the pain that he was 

suffering, but was denied partials and other treatment deemed to be routine because 

he failed to meet the policy of being confined at least 24-months. In June 2015 

when his 24-months wait was completed, Dearduff requested a dental examination 

so he could receive partial dentures due to the pain he suffered. He was informed 

that he was “placed on a list.” Dearduff has continued to suffer pain and is unable 

to masticate food, eat hard foods or chew due to the loss of teeth extracted by 

agents of the Defendant and their refusal to provide partials and timely routine 

treatment. 

2. Plaintiff NICHOLAS BAILEY, 970872 (hereafter Bailey) is/was at 

all times relevant a prisoner confined with the MDOC who sought dental care that 

was denied or delayed in violation of the Eighth Amendment.1 Upon his 

imprisonment in October 2016, Bailey wrote dental that he needed dentures 

because he had no teeth and could not eat properly. He was denied dentures 

because he had not been confined for 24-months.

3. Plaintiff TIMOTHY BROWNELL, 656313 (hereafter Brownell), 

is/was at all times relevant a prisoner confined with the MDOC who sought dental 

care that was denied or delayed in violation of the Eighth Amendment. Starting in 

																																																						 1

 Bailey had filed in the Western District of Michigan. This case was transferred to 

the Eastern District of Michigan and I believed was to be consolidated with this 

matter. It has not yet been consolidated.

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January 2017, Brownell brought to the attention of the dental that he had a bad 

toothache and he had not received a cleaning for approximately 16 or 17 months. 

He was placed on the routine wait list and was informed that he would be called 

out when it was his turn. Over the next 6 to 7 months, Brownell submitted almost 

weekly kites informing dental that he was in pain, part of a tooth filling broke off, 

and more of that filling broke off. He saw the dentist in May 2017 and was 

informed that his condition had deteriorated such that he now needed root canal, 

but the MDOC does not provide such. Brownell was told that the only thing that 

could be done was extraction of the tooth.

4. Plaintiff MELVIN BROWNES, 172387 (hereafter Brownes), is/was 

at all times relevant a prisoner confined with the MDOC who sought dental care 

that was denied or delayed in violation of the Eighth Amendment. In March 2016, 

Brownes begin his incarceration with MDOC. Once he arrived at the first prison, 

he sought a routine dental exam, so he could receive a treatment plan and 

appropriate treatment. He was informed he could not receive routine dental care, 

including cleaning, until he had been imprisoned for 24-months. At the intake 

dental examination, Brownes was diagnosed with moderate periodontal disease 

(“perio”) and heavy calculus and he was denied appropriate treatment because he 

had not been imprisoned for at least 24-months. This failure to treat allowed his 

periodontal disease to become worst and created other dental issues.

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5. Plaintiff TIMOTHY FLESSNER, 703698 (hereafter Flessner), 

is/was at all times relevant a prisoner confined with the MDOC who sought dental 

care that was denied or delayed in violation of the Eighth Amendment. In August 

2016, Flessner was confined with MDOC and requested dental care. He sought the 

repair of two teeth by dental staff. It was determined that one tooth was 

salvageable but due to Flessner not having completed the 24-months

imprisonment, no work could be done on that salvageable tooth. As a result of the 

19-month delay in providing dental care, tooth #29 deteriorated such that it was not 

salvageable. Further, on April 14, 2017, Flessner was informed that when his 24-

months were up in two months he could kite to have the tooth repaired. If he kited 

in two-months, Flessner would then have been placed on a waiting list for cleaning 

and then another waiting list for the actual dental care needed. The grievance 

responder told Flessner that an outside dentist could repair these teeth if he could 

pay for that care.

6. Plaintiff JAMES GUNNELS, 186011 (hereafter Gunnels), is/was at 

all times relevant a prisoner confined with the MDOC who sought dental care that 

was denied or delayed in violation of the Eighth Amendment. In October 2016, 

Gunnels entered the prison system and he sought dentures because he had no 

teeth. He was denied any dental services as to his request for dentures because he 

had not yet been imprisoned for 24-months. Gunnels informed dental staff that he 

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was in great pain and suffering, which resulted from his inability to masticate food.

He was told to kite back on or after October 22, 2018. 

7. Plaintiff LEON MEANS, 131310 (hereafter Means), is/was at all 

times relevant a prisoner confined with the MDOC who sought dental care that was 

denied or delayed in violation of the Eighth Amendment. In July 2015, Means

arrived at the MDOC edentulous and promptly requested care because he was in 

pain and his gums were torn from trauma resulting from chewing. He was told that 

he had to complete 24-months of imprisonment, and he could then submit a kite for 

dental care. While at Saginaw Prison in 2015, he again requested dentures and a 

mechanical soft diet but was again told to wait to complete 24-months 

imprisonment to received these services.

8. Plaintiff JOHN PORTER, 154033 (hereafter Porter), is/was at all 

times relevant a prisoner confined with the MDOC who sought dental care that was 

denied or delayed in violation of the Eighth Amendment. In May 2017, prison staff 

broke Porter’s upper and lower dentures. Porter sought to have these replaced but 

dental refused to replace based on the dental policy that dentures can only be 

replaced every five years and he had received those dentures in November 2014. 

After he received the dentures and up to them being broken by prison staff, Porter 

had four additional teeth removed, which would have prevented the broken 

dentures from being repaired due to poor occlusion. The dentist stated that the 

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dentures were denied not because Porter’s partial edentulism did not constitute a 

serious medical need but because of dental policy that limited new dentures to 

every five years.

9. Plaintiff KENNETH REEVES, 717138 (hereafter Reeves), is/was at 

all times relevant a prisoner confined with the MDOC who sought dental care that 

was denied or delayed in violation of the Eighth Amendment. In January 2017, 

Reeves was incarcerated. At the intake examination it was determined that he had 

early periodontal disease and treatment of this disease will not be provided until 

after a dental cleaning. Reeves sought a dental cleaning but was told that he can 

kite in January 2019 for such care after he had completed the 24-months

imprisonment. 

10. Plaintiff ANTHONY RICHARDSON, 235980 (hereafter 

Richardson), is/was at all times relevant a prisoner confined with the MDOC who 

sought dental care that was denied or delayed in violation of the Eighth 

Amendment. In February 2014, Richardson was diagnosed with moderate 

periodontal disease. He sought treatment but none was provided. In February 2016, 

Richardson asked for treatment for pain in his teeth and requested periodontal 

treatment but was denied. On or about June 9, 2016, Richardson requested 

treatment for pain in his upper teeth. The Step-two grievance response states that 

Richardson “request ‘treatment for periodontal disease (and) cavity filling – no 

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extraction.’” This grievance response goes on to state the only treatment offered 

Richardson by the dentist was extraction. The dentist stated, “grievant has been 

diagnosed with periodontitis of the affect teeth (molars #1 & 2). Extraction of the 

teeth has been recommendation by the dentist.” Richardson suffered pain in his 

teeth and gums and in the area of his molars and abscesses in his gums. When 

engaged in flossing, Richardson’s gums would bleed. Over time, if periodontal 

disease is not treated, the bone that supports the teeth may deteriorate and the 

prisoner is subjected to further dental issues. Defendant has a policy and/or 

practice of not providing care to those with periodontal diseases. Based on the 

nature of periodontal disease, it is common knowledge among dentists that 

periodontal disease should be treated timely or it may progress and cause other 

dental issues.

11. Plaintiff CARL ROMAN, 250050 (hereafter Roman), is/was at all 

times relevant a prisoner confined with the MDOC who sought dental care that was 

denied or delayed in violation of the Eighth Amendment. In January 2017, Roman

was incarcerated with the MDOC. Dental staff determined that he had early 

moderate periodontal disease. Roman sought dental care, including a cleaning to 

deal with the diagnosis of early periodontal disease. Due to his not being 

imprisoned for at least 24-months at the time of his request, MDOC refused to 

provide any dental care deemed to be routine. Roman was told to kite after 

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1/19/2019 to receive dental care. Due to Roman not being imprisoned for 24-

months when he sought a dental cleaning, no exam was provided to him by the 

dentist, no treatment plan was treated, and he wan not provided treatment for his 

early periodontal disease.

12. Plaintiff BRYAN SLONE, 296250 (hereafter Slone) is/was at all time 

relevant a prisoner confined with the MDOC who sought dental care that was 

denied or delayed in violation of the Eighth Amendment. In February 2014, Slone

sought dental care for a broken tooth that was painful but was denied permanent

restoration due to the 24-months imprisonment wait policy. Due to Defendants’ 

policy, the repair of a fractured tooth is considered routine care, and thus, Slone 

had to suffer and endure tooth pain for at least the 24-months wait, or agree to 

extraction of the restorable fractured tooth. Such a policy subjects prisoners to the 

risk of preventable pain as well as tooth morbidity and tooth mortality. On the 

other hand, prisoners who refuse the extraction must endure tooth pain until they 

emerge from quarantine – waiting for as much as 24-months. During the 24-

months wait, a restorable tooth may become unrestorable. 

13. Plaintiff TINA STOLL, 875525 (hereafter Stoll) is/was at all time 

relevant a prisoner confined with the MDOC who sought dental care that was 

denied or delayed in violation of the Eighth Amendment. During her first 24-

months of confinement, Stoll had at least 20 teeth extracted but was denied 

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dentures because she had not been imprisoned for at least 24-months. The initial 

Intake Exam was inadequate because it did not produce a treatment plan or dental 

probing. Even though Stoll had requested a teeth-cleaning exam and was placed on 

a waiting list on August 22, 2013, Stoll did not receive the cleaning for more than 

2 1⁄2 years later on February 29, 2016. Stoll informed dental staff that while eating 

food her gums would bleed; she would swallow food whole and experience 

vomiting and other digestive problems every time she ate. She was subjected to 

unreasonable delay in the production of dentures that caused pain and other 

discomforts. She was also subjected to an untimely treatment plan, which resulted 

in Stoll being subjected to a cycle of episodic care, i.e., frequent toothaches; and 

the dental staff did not offer her a mechanical soft diet.

14. Defendant HEIDI WASHINGTON (hereafter Washington) is the 

Director of the Michigan Department of Correction and is sued in her official 

capacity. At all times relevant hereto, she has acted under color of state law. She is

responsible for the operation of the State of Michigan prisons and directs its 

policies and procedures pertaining to the providing of dental care. Presently she 

has one Regional Dental Administrators who is responsible for enforcing her 

written and verbal policies and practices.

15. Defendant JONG CHOI is the Chief Dental Officer for MDOC and 

is sued in his official capacity. At all times relevant hereto, he has acted under 

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color of state law. Also, at all times mentioned in this complaint, Defendant Choi 

was an agent of Defendant Washington and was acting within the course and scope 

of this agency, and all acts alleged to have been committed by Defendant Choi in 

the ensuring that the dental policy was implemented was committed on behalf of 

Defendant Washington.

JURISDICTION

16. This action arises under the United States Constitution and 42 U.S.C.. 

1983. Jurisdiction is proper in this court pursuant to 28 U.S.C. 1331 and 

1343(a)(3).

17. This Court has jurisdiction over Plaintiffs’ claims for declaratory and 

injunctive relief pursuant to 28 U.S.C. 2201and 2202.

18. Pursuant to Fed.R.Civ.P. 23(b)(2), Plaintiffs seek class certification 

based on the method and manner that dental care is provided to those confined 

within the prison system today and in the future.

VENUE

19. Venue is proper in this Court pursuant to 28 U.C.C. 1391(b)(1) 

because Defendant resided in the Eastern District of Michigan; venue is also 

peroper pursuant to 28 U.S.C. 1391(b)(2) because a substantial part of the events 

or omissions giving rise to Plaintiffs’ claims occurred in the Eastern District of 

Michigan.

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FACTUAL ALLEGATIONS

20. Defendant Washington is the Director of MDOC and is responsible 

for ensuring that all prisoners receive dental care that does not subject the 

Plaintiffs, or the proposed class members, to pain in violation of the Eighth 

Amendment.

21. Defendant Washington is responsible for operation of all prison dental 

facilities, which current house approximately 39,000 prisoners. One of the 

missions of the MDOC is to provide dental care on a professional manner like 

dental care provided in the communities.

22. Defendant Choi presently is the Chief Dental Officer for the entire 

MDOC and is responsible for ensuring that the MDOC’s Dental Protocol and 

Policy Directive 04.06.150 are implemented.

23. There are approximately 8,000 prisoners who entered and/or are 

returned to prison as parole violators each year that are subjected to the 24-months

wait, which prevents and prohibits routine dental care even if the request is for 

treatment of painful conditions. Routine dental care (per MDOC Policy Directive 

04.06.150 [R.124-8]) includes all dental care (excluding urgent and emergent 

dental care), such as cleaning, examinations and treatment plans, periodontal 

screening and treatment, fillings, and dentures.

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24. Any prisoners that has a dental issue involving pain during this 24-

months wait will be refused dental care, such as filling of a cavity, and will be 

required to wait for the completion of a 24-months imprisonment or will be offered 

extraction of the tooth even if that tooth is savagable.

25. Plaintiffs and the Class members were denied routine dental care 

based on the single fact that they had not completed the 24-months imprisonment 

mandated by Policy Directive 04.06.150.

26. Prior to October 2013, MDOC did not restrict the types of dental care 

provided to prisoners who entered the prison system. There existed no restrictions 

that those who had not been imprisoned for less than 24-months could not receive 

routine dental care. The only restriction, if it could be called a restriction, was that 

MDOC did not employ sufficient medical staff that a wait list of approximately 

8,000 prisoners had developed.

27. In 2013, MDOC decided to restrict, or one could say narrow, the type 

of dental care that would be provided during the first 24-months of imprisonment. 

According to the new policy directive, for the first 24-months of imprisonment that 

prisoners could not receive care if it involved the providing of routine dental care. 

The policy said that care would only be provided to those with urgent needs. Based 

on this new policy, within months, this huge wait list of approximately 8,000 

prisoners was reduced to around 2,000 prisoners.

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28. As part of the implementation of the new policy directive, Defendant 

and her agents did not define routine dental care during the first 24-months to 

include dental care to alleviate pain and to take steps to ensure that salvageable

teeth were restored and/or preserved. 

29. Defendant Washington has created a policy that prisoners within the 

first 24-months of their imprisonment that have dental pain that require routine 

care to eliminate the pain will not receive dental services to fix or restore or 

eliminate the pain for those teeth, but are denied routine care to fix the teeth to 

ensure that they are useable, instead they are told to either agree to extraction of 

the teeth with pain, or continue to suffer pain during the remaining months of first 

24-months of imprisonment.

30. Defendants have established a practice that during intake there is a 

failure to provide periodontal screening and diagnosis and proper diagnostic xrays, which if done in compliance with national dental standards, could prevent the 

periodontal disease going from “mild” or “average” to “moderate” and to 

“advanced” or “serious”, which could result in the inability to correct or control the 

periodontal disease, as well as to prevent tooth loss.

31. The periodontal classification made at the intake examination is 

inadequate and understates the amount and severity of prisoners’ periodontal 

diseases because Panoramic x-rays that are used are not an acceptable diagnostic 

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tool for identifying and classifying periodontal disease. Moreover, since 

periodontal probing (an accepted professional standard) is not documented, the 

severity and location of periodontal disease is inadequately characterized.

32. The named Plaintiffs and the proposed class members are subjected to 

needless pain based on the first 24-months of imprisonment; the practice of 

classifying all dental procedures to eliminate pain as routine care during this 24-

months wait; implementation of a policy of extraction for emergent dental issues 

during this 24-months wait, which forces the prisoners to choose between

continuing pain or teeth extraction. The policy further forces an inmate to request 

either extraction of a healthy tooth that was restorable or wait with pain and hope 

the tooth remains restorable after the 24-months. Thus, such a 24-months wait 

leads to restorable teeth becoming unrestorable and thus, unnecessary loss of 

healthy teeth. At the end of the 24-months wait, prisoners are then placed on waitlists that can result in not receiving dental care for 6-18 months before ever being 

seen for their routine dental needs. Plaintiffs and the proposed class members are 

bringing a facial challenge to the policy directive implemented in October of 2013.

33. Due to the untimely care because no dental plan is made at intake and 

the 24-months wait imprisonment, a fractured tooth left untreated allows decay to 

enter the tooth and such decay may progress increasing tooth morbidity because 

the progressing untreated decay will cause a tooth once restorable to become 

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unrestorable, thereby forcing extraction and confirming the defendant’s policy of 

favoring extraction over tooth restoration to save teeth. Such a policy violates the 

Eighth Amendment as the policy causes unnecessary pain and unnecessary tooth 

loss thereby destroying the dentition.

34. Defendants have a practice that once prisoners have completed the 

first 24-months of imprisonment, they can submit a dental kite to receive a dental 

cleaning and to determine what dental care is needed for routine dental issues that 

have been denied up to the last 24-months; the requesting prisoner is placed on a 

waiting list for “dental cleaning”, which can then take 6-12 months to receive the 

cleaning. At the cleaning, the prisoner will then see the dentist who will create a 

treatment plan, i.e, fillings, which then results in the prisoner placement on another 

wait list for fillings, and can be on that wait list for 4-12 months.

35. Once prisoners have completed the first 24-months of imprisonment, 

they can then wait up to 6-18 months to receive actual dental care. Due to the long 

wait lists these prisoners are deprived of timely dental care leading to unnecessary 

tooth pain, preventable progression of decay and/or tooth loss.

36. Defendants have created a policy and/or practice that during the first 

24-months of their imprisonment, prisoners who are in need of dentures due to loss 

of teeth or unrestorable teeth can have these unrestorable teeth pulled, but cannot 

receive dentures even though those prisoners are not able to chew hard and chewy 

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foods; the same policy does not allow old dentures that are broken or damaged, 

dentures lost by prison staff, and/or failure to provide dentures pursuant to 

extenuating circumstances such as being assaulted by another inmate with a lockn-sock causing a broken jaw and loss of teeth, to be replaced during the first 24-

months of imprisonment. As a result of this policy and/or practice, Washington 

and Choi have failed to provide timely dentures, which failure adversely impacted 

Plaintiffs and the untimely dentures Class ability to masticate food, achieve proper 

nutrition, and be free from pain.

37. Washington and Choi have failed to provide sufficient and/or timely 

dental care, such as dentists or other dental staff, which failure adversely impacted 

Plaintiffs and the four proposed Classes’s ability to masticate food, achieve proper 

nutrition, and be free from pain and/or includes untimely treatment of tooth pain 

and decay permitting the decay to worsen to the point o requiring extraction or loss 

of teeth unnecessarily which could have been prevented by timely care.

CLASS ACTION ALLEGATIONS

A. 24-months No Routine Dental Care – Class 1

38. Pursuant to Federal Rules of Civil Procedure 23(a) and 

23(b), Plaintiffs BAILEY, BROWNES, FLESSNER, GUNNELS, MEANS, 

REEVES, ROMAN, and SLONE bring this action on behalf of themselves and a 

class of all persons who are now, or will in the future be, subjected to the dental 

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care policies and practices of Defendant Washington. Washington is aware that the 

policy of denying MDOC prisoners routine care during their first 24 months of 

incarceration has no clinical basis and exposes them to a substantial risk of serious 

harm, including exposure to unnecessary tooth pain, decay, and unnecessary loss 

of teeth; yet she chooses not to alter the policy.

(1) Fed.R.Civ.P. 23(a(1); Impracticability of Joinder

39. The 24 months no routine dental care (quarantine) Class is so 

numerous that joinder of all class members is impracticable. There are 

approximately 16,000 prisoners confined with the MODC who have entered the 

prison system within the last 24 months. Every 12 months there are approximately 

8,000 new potential class members: prisoners who are newly admitted to the 

MDOC or parole violators sentenced / returned to serve more time.

40. At the end of the 24 months imprisonment, thousands of prisoners 

become eligible to receive routine dental care; however, they must then request a 

dental cleaning and/or dental exam, which results in their being placed on a 

waiting list for that cleaning and/or dental exam. Based on the dental treatment 

plans created for each prisoner, they are then placed on other wait lists for 

treatment. Such wait lists are long due to insufficient staffing. Due to the long wait 

lists, these prisoners are deprived of timely dental care leading to unnecessary 

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tooth pain, preventable progression of decay and/or tooth loss. The practical effect 

of these delays is to make the quarantine substantially longer than 24 months.

41. These prisoners who are subjected to 24-months denial of routine 

dental care are identifiable using records maintained in the ordinary course of 

business by the MDOC. All prisoners who are incarcerated less than 24 months are 

class members.

(2) Fed.R.Civ.P. 23(a)(2): Commonality

42. There are questions of law and facts common to those prisoners who 

are defined as class members who have been imprisoned with the MDOC less than 

24 months.

a. Whether Washington’s failed to maintain, supervise and operate a 

dental system that provides minimally adequate dental care, which did 

not pose a substantial risk of serious harm to those confined for less than 

24-months and needing routine care.

b. Whether Washington was deliberately indifferent to the serious dental 

needs of class members, and to the risk posed by the failure to use 

sufficient x-rays to diagnose caries and bone loss and document 

periodontal probing to screen for and diagnose periodontal disease, and 

to prepare a treatment plan and provide treatment for the conditions 

identified within the first 24 months of imprisonment.

43. Because the intake exam is incomplete and below accepted 

professional standards, all prisoners are subject to the risk of serious harm from 

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lack of untimely diagnosis of dental disease and creation of appropriate treatment 

plans.

44. Failure to provide periodontal screening and diagnosis (i.e., the PSR) 

and proper diagnostic x-rays at intake can result in the periodontal disease going 

from “mild” or “average” to “moderate” and to “advanced” or “serious”, which can 

result in the inability to correct or control the periodontal disease, as well as 

preventable tooth loss.

45. The periodontal classification made at the intake examination is 

inadequate and understates the amount and severity of a prisoner’s periodontal 

disease because the Panoramic x-ray that is used is not an acceptable diagnostic 

tool for identifying and classifying periodontal disease. Moreover, since 

periodontal probing (an accepted professional standard) is not documented, the 

severity and location of periodontal disease is inadequately characterized.

46. Routine oral examinations (Service Codes 00120 and 00150), while 

using bite-wing x-rays, fail to document periodontal probing (an accepted 

professional standard) and thus periodontal disease is under diagnosed. 

Consequently, the resulting treatment plans for addressing periodontal disease are 

inadequate. 

47. Even when moderate or advanced periodontal disease is identified, 

appropriate non-surgical treatment (i.e., scaling and root planing – which MDOC 

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calls “perio scale” (Service Codes 0433, 0434, and 0439)) is not scheduled,

planned, or is untimely performed.

48. These individuals who are subjected to inadequate periodontal 

screening and inadequate x-rays are identifiable using records maintained in the 

ordinary course of business by MDOC.

49. Washington is expected to raise common defenses to these claims, 

including denying that her actions violated the law.

(3) Fed.R.Civ.P. 23(a)(3): Typicality

50. The claims of the 24-month denial of routine care Plaintiffs are typical 

of those of the 24-month denial of routine care Class, as their claims arise from the 

same policies, practice, and course of conduct, and their claims are based on the 

same theory of law as the Class claims.

51. (4) Fed.R.Civ.P. 23(a)(4): Adequacy of Representation

52. Each of the 24 months no routine care Class Plaintiffs will fairly and 

adequately represent the interests of the 24 months no routine care Class and will 

diligently serve as class representatives. Their interests are co-extensive with those 

of the 24 months no routine care Class, and they are represented by counsel 

experienced in class litigation and in litigation involving the rights of prisoners. 

Putative Class Counsel possesses the experience and resources necessary to fairly 

and adequately represent the Class.

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(5) Fed.R.Civ.P. 23(b)

53. This action is maintainable as a class action pursuant to Fed.R.Civ.P. 

23(b)(1) because the number of class members is approximately 16,000, and the 

prosecution of separate actions by individuals would create a risk of inconsistent 

and varying adjudications, which in turn would establish incompatible standards of 

conduct for Defendants. Additionally, the prosecution of separate actions by 

individuals could result in adjudications with response to individual class members 

that, as a practical matter, would substantially impair the ability of other members 

to protect their interests.

54. This action is also maintainable as a class action pursuant to 

Fed.R.Civ.P. 23(b)(2) because Washington’s policies, practices, actions, and 

omissions that form the basis of the claims of the 24 months no routine care Class 

are common to and apply generally to all members of the class. The 24-months no 

routine care’s policy and practices are centrally promulgated, disseminated, and 

enforced from the headquarters of Defendants Washington and Choi. The 

injunctive and declaratory relief sought is appropriate and will apply as a whole to 

all members of the 24 months no routine care class.

B. Periodontal Evaluation and Treatment – Class II

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55. Washington and Choi are aware that the MDOC has a practice of not 

providing appropriate periodontal diagnosis and treatment and both Washington 

and Choi are aware that this practice exposes prisoners to a substantial risk of 

serious harm, yet they choose not to alter the practice.

56. Pursuant to Fed.R.Civ.P. 23(a) and 23(b), PLAINTIFFS

BROWNES, FLESSNER, RICHARDSON, REEVES, ROMAN, and SLONE 

bring this action on behalf of themselves and all other persons who are now, or will 

in the future be diagnosed with periodontal disease and not be provided appropriate 

treatment.

(1) Fed.R.Civ.P. 23(a)(1); Impracticability of Joinder

57. The Dental Class is so numerous that joinder of all class members is 

impracticable. Presently there are approximately 39,000 prisoners imprisoned with 

the MDOC. 

58. Failure to provide periodontal treatment can result in the periodontal 

disease going from “mild” or “average” to “serious, which can result in the 

inability to correct or control the periodontal disease. MDOC has a practice of not 

prescribing and performing appropriate periodontal treatment, such as root planing 

and scaling, even when periodontal disease is diagnosed, prisoners are subject to 

risk of preventable progression of periodontal disease, with attendant loss to teeth 

and gratuitous pain

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59. These individuals who are subjected to no periodontal treatment are 

identifiable using records maintained in the ordinary course of business by MDOC.

(2) Fed.R.Civ.P. 23(a)(2): Commonality

60. There are questions of law and facts common to those prisoners who 

are defined as members who have not been provided with periodontal treatment.

a. Whether Defendants failed to operate a dental system that provided 

minimally adequate dental care, which did not pose a substantial risk 

of serious harm by failing to provide periodontal treatment.

b. Whether Defendants were deliberately indifferent to the serious dental 

needs of class members, and to the risk posed by the failure to provide 

periodontal treatment.

61. Washington and Choi are expected to raise common defenses to these 

claims, including denying that their actions violated the law.

(3) Fed.R.Civ.P. 23(a)(3): Typicality 

62. The claims of those not provided periodontal treatment Plaintiffs are 

typical of those not provided periodontal treatment, as their claims arise from the 

same policy, practice, and course of conduct, and their claims are based on the 

same theory of law as the Class claims.

(4) Fed.R.Civ.P. 23(a)(4): Adequacy of Representation 

63. Each of the periodontal treatment Class Plaintiffs will fairly and 

adequately represent the interests of the periodontal treatment Class and will 

diligently serve as a class representative. Their interests are co-extensive with 

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those of the periodontal treatment Class, and they are represented by counsel 

experienced in class litigation and in litigation involving the rights of prisoners. 

Putative Class Counsel possesses the experience and resources necessary to fairly 

and adequately represent the Class.

(5) Fed.R.Civ.P. 23(b) 

64. This action is maintainable as a class action pursuant to Fed.R.Civ.P. 

23(b)(1) because the number of class members is approximately 39,000 and the 

prosecution of separate actions by individuals would create a risk of inconsistent 

and varying adjudications, which in turn would establish incompatible standards of 

conduct for Defendant. Additionally, the prosecution of separate actions by 

individuals could result in adjudications with response to individual class members 

that, as a practical matter, would substantially impair the ability of other members 

to protect their interests.

65. This action is also maintainable as a class action pursuant to 

Fed.R.Civ.P. 23(b)(2) because Washington’s policy, practice, action, and omission 

that are implemented and enforced by Defendant Choi form the basis of the claims 

of the periodontal treatment Class that are common to and apply generally to all 

members of the class. The periodontal treatment’s policy and practice are centrally 

promulgated, disseminated, and enforced from the headquarters of Defendants 

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Washington and Choi. The injunctive and declaratory relief sought is appropriate 

and will apply as a whole to all members of the 24-months class.

C. Dentures – Class III

66. Washington and Choi are aware that MDOC has a practice of not 

timely providing dentures to prisoners who have unserviceable dentures or have 

pain and difficulty when eating, and both Defendants Washington and Choi are 

aware that this practice exposes prisoners to a substantial risk of serious harm, 

including loss of occlusion, inability to eat hard foods and/or chew hard foods; yet 

they choose not to alter the unconstitutional practice.

67. Pursuant to Fed.R.Civ.P. 23(a) and 23(b), PLAINTIFFS

DEARDUFF, BAILEY, GUNNELS, MEANS, PORTER, and STOLL bring 

this action on behalf of themselves and all other persons who are now, or will in 

the future will need dentures and are not timely provided.

(1)Fed.R.Civ.P. 23(a)(1); Impracticability of Joinder

68. The Dental Class is so numerous that joinder of all class members is 

impracticable. Presently there are approximately 39,000 prisoners imprisoned with 

MDOC. 

69. Plaintiffs have requested dentures due to loss of teeth, inability to 

chew hard and chewy foods, old dentures being broken or damaged, dentures lost 

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by prison staff, and failure to provide dentures pursuant to extenuating 

circumstances such as being assaulted by another inmate with a lock-n-sock 

causing a broken jaw and loss of teeth.

70. Washington and Choi have failed to provide timely dentures, which 

failure adversely impacted Plaintiffs and the untimely dentures Class ability to 

masticate food, achieve proper nutrition, and be free from pain.

71. These individuals who are subjected to untimely dentures are 

identifiable using records maintained in the ordinary course of business by MDOC.

(2) Fed.R.Civ.P. 23(a)(2): Commonality

72. There are questions of law and facts common to those prisoners who 

are defined as members who have not been provided with timely dentures.

a. Whether Defendants failed to operate a dental system that provided 

minimally adequate dental care, which did not pose a substantial risk 

of serious harm by failing to provide timely dentures.

b. Whether Defendants were deliberately indifferent to the serious dental 

needs of class members, and to the risk posed by the failure to provide 

timely dentures.

73. Washington and Choi are expected to raise common defenses to these 

claims, including denying that their actions violated the law.

(3) Fed.R.Civ.P. 23(a)(3): Typicality 

74. The claims of those not provided timely dentures Plaintiffs are typical 

of those not provided timely dentures Class members, as their claims arise from the 

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same policy, practice, and course of conduct, and their claims are based on the 

same theory of law as the Class claims.

(4) Fed.R.Civ.P. 23(a)(4): Adequacy of Representation 

75. Each of the timely dentures Class Plaintiffs will fairly and adequately 

represent the interests of the timely dentures Class and will diligently serve as a 

class representative. Their interests are co-extensive with those of the timely 

dentures Class, and they are represented by counsel experienced in class litigation 

and in litigation involving the rights of prisoners. Putative Class Counsel 

possessess the experience and resources necessary to fairly and adequately 

represent the Class.

(5) Fed.R.Civ.P. 23(b) 

76. This action is maintainable as a class action pursuant to Fed.R.Civ.P. 

23(b)(1) because the number of class members is approximately 1,000 and the 

prosecution of separate actions by individuals would create a risk of inconsistent 

and varying adjudications, which in turn would establish incompatible standards of 

conduct for Defendants. Additionally, the prosecution of separate actions by 

individuals could result in adjudications with response to individual class members 

that, as a practical matter, would substantially impair the ability of other members 

to protect their interests.

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77. This action is also maintainable as a class action pursuant to 

Fed.R.Civ.P. 23(b)(2) because Washington’s policy, practice, action, and omission 

that are implemented and enforced by Defendant Choi form the basis of the claims 

of the timely dentures Class that are common to and apply generally to all 

members of the Class. The timely denture’s policy and practice are centrally 

promulgated, disseminated, and enforced from the headquarters of Defendants 

Washington and Choi. The injunctive and declaratory relief sought is appropriate 

and will apply as a whole to all members of the 24-months class.

D. Waiting List – Class IV

78. Washington and Choi are aware that the MDOC has a practice of 

placing prisoners who have been incarcerated for more than 24 months and who 

complain of dental/tooth pain, inability to chew or eat hard foods due to lack of 

teeth or tooth pain, inability to sleep, bleeding gums or seek routine dental care, 

such as teeth cleanings nor seeking fillings for cavities, on long wait lists for this 

dental care, Washington and Choi are aware that this practice exposes prisoners to 

a substantial risk of serious harm, yet Washington and Choi chooses not to alter the 

practice.

79. Pursuant to Fed.R.Civ.P. 23(a) and 23(b), PLAINTIFFS

DEARDUFF and BROWNELL bring this action on behalf of themselves and all 

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other persons who are now, or will in the future need dentures and are not timely 

provided.

(1)Fed.R.Civ.P. 23(a)(1); Impracticability of Joinder

80. The Dental Class is so numerous that joinder of all class members is 

impracticable. Presently there are approximately 23,000 prisoners imprisoned with 

MDOC who have served more than 24 months.

81. At the end of the 24 months thousands of prisoners become eligible to 

receive routine dental care, except that those prisoners must then request a dental 

cleaning and/or dental exam, which results in their being placed on a waiting list 

for that cleaning and/or dental exam. Based on the dental treatment plans created 

for each prisoner at these cleanings, the prisoners are then placed on other wait lists 

for treatment. Such wait lists are long due to insufficient staffing. Due to the long 

wait lists, these prisoners are deprived of timely dental care leading to unnecessary 

tooth pain, unnecessary progression of decay and/or unnecessary tooth lost.

82. Plaintiffs have requested dental care after meeting the 24-month 

requirement of imprisonment, and have initially been placed on a wait list for 

dental cleaning and/or evaluation by the dentist to create a dental plan, which can 

take up to sex-months or longer. Where the dental plan includes any type of dental 

care, such as fillings, teeth cleaning or dentures, prisoners are then placed on that 

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specific wait list, which then takes another six or more months of waiting for such 

dental care.

83. Washington and Choi have failed to provide sufficient and/or timely 

dental care, such as dentists or other dental staff, which failure adversely impacted 

Plaintiffs and the wait lists Class’s ability to masticate food, achieve proper 

nutrition, and be free from pain and/or includes untimely treatment of tooth pain 

and decay permitting the decay to worsen to the point o requiring extraction or loss 

of teeth unnecessarily which could have been prevented by timely care.

84. These individuals who are subjected to placements on these wait lists

are identifiable using records maintained in the ordinary course of business by the 

MDOC.

(2) Fed.R.Civ.P. 23(a)(2): Commonality

85. There are questions of law and facts common to those prisoners who 

are defined as members who have been placed on dental wait lists.

a. Whether Defendants failed to operate a dental system that provided 

minimally adequate dental care, which did not pose a substantial risk 

of serious harm by failing to provide sufficient dentists and other 

support staff.

b. Whether Defendants were deliberately indifferent to the serious dental 

needs of Plaintiffs and class members by the placement of prisoners 

on long wait lists subjecting them to untimely dental care resulting in 

unnecessary tooth loss, loss of tooth structure of the hard and soft 

tissues and/or tooth pain.

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86. Washington and Choi are expected to raise common defenses to these 

claims, including denying that their actions violated the law.

(3) Fed.R.Civ.P. 23(a)(3): Typicality 

87. The claims of those placed on long wait lists Plaintiffs are typical of 

those placed on long wait list, as their claims arise from the same policy, practice, 

and course of conduct, and their claims are based on the same theory of law as the 

Class claims.

(4) Fed.R.Civ.P. 23(a)(4): Adequacy of Representation 

88. Each of the wait lists Class Plaintiffs will fairly and adequately 

represent the interests of the wait lists Class and will diligently serve as a class 

representative. Their interests are co-extensive with those of the wait lists Class, 

and they are represented by counsel experienced in class litigation and in litigation 

involving the rights of prisoners. Putative Class Counsel possesses the experience 

and resources necessary to fairly and adequately represent the Class.

(5) Fed.R.Civ.P. 23(b) 

89. This action is maintainable as a class action pursuant to Fed.R.Civ.P. 

23(b)(1) because the number of class members is approximately 23,000 and the 

prosecution of separate actions by individuals would create a risk of inconsistent 

and varying adjudications, which in turn would establish incompatible standards of 

conduct for Defendants. Additionally, the prosecution of separate actions by 

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individuals could result in adjudications with response to individual class members 

that, as a practical matter, would substantially impair the ability of other members 

to protect their interests.

90. This action is also maintainable as a class action pursuant to 

Fed.R.Civ.P. 23(b)(2) because Washington’s policy, practice, action, and omission 

that are implemented and enforced by Defendant Choi form the basis of the claims 

of the wait lists Class that are common to and apply generally to all members of 

the Class. The wait lists’ policy and practice are centrally promulgated, 

disseminated, and enforced from the headquarters of Defendants Washington and 

Choi. The injunctive and declaratory relief sought is appropriate and will apply as 

a whole to all members of the 24-months class.

EIGHTH AMENDMENT VIOLATION

91. Plaintiffs allege and incorporate by reference all prior paragraphs.

92. Dental health needs are serious medical necessities, because dental 

care is one of the most important needs of inmates to preserve and maintain 

general health, including the ability to eat and chew foods, and the ability to 

engage in a normal activity of eating, necessary for maintaining nutritional health, 

physical-health, and dental health. Normal eating and chewing are a basic bodily 

function to sustain life, and deprivation of the ability to eat and chew constitutes 

cruel and unusual punishment.

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93. Deliberate indifference to serious dental needs is evidenced by 

systemic deficiencies in dental care policies and practices in Michigan prisons that 

have produced longstanding instances of inadequate care. The MDOC’s policies 

and practices “as-applied” to those not subjected to the 24-months wait constitute 

cruel and unusual punishment, thereby violating the Eighth Amendment of the 

United States Constitution when these serious dental needs of the Plaintiffs and 

proposed class members were/are not met. 

94. Defendants have created and engaged in systemic deficiencies in the 

delaying and denying needed dental care to the Plaintiffs and proposed class 

members, such that Defendants have demonstrated deliberate indifference to 

serious dental needs.

95. The named Plaintiffs and the proposed class members are subjected to 

needless pain based on the 24-months wait; the practice of classifying all dental 

procedures to eliminate pain as routine care during the 24-months wait; 

implementation of a policy of extraction for emergent dental issues during the 24-

months wait, which forces the prisoners to choose between continuing pain or 

having their teeth extracted. The policy further forces an inmate to either request 

extraction of a healthy tooth that was restorable or wait with pain and hope the 

tooth remains restorable after the 24-months. Thus, such a 24-months wait leads to 

restorable teeth becoming unrestorable and thus, unnecessary loss of healthy tooth. 

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At the end of the 24-months wait, prisoners are then placed on wait-lists that can 

result not receiving dental care for 6-months to over a year before even being seen 

for their emergent dental needs. Plaintiffs and the proposed class members are 

bringing a facial challenge to the policy directive implemented in October of 2013.

96. The implementation of the October 2013 policy directive on its face

constitute cruel and unusual punishment, thereby violating the Eighth Amendment 

of the United States Constitution when these serious dental needs of the Plaintiffs, 

and proposed class members were/are not met during the first 24-months of 

imprisonment.

97. Further, those prisoners who entered the system in need of dentures 

are denied such during this 24-months wait even though they are/may suffer pain 

and cannot properly chew food. Moreover, at the end of these 24-months wait

these prisoners are then placed on new wait lists that can result in waiting for 6-

months to over a year before even being seen for an evaluation of the need for 

dentures. These prisoners then may wait years before they are provided dentures.

98. The named Plaintiffs and proposed class members are being subjected 

to needless pain and/or risk of unnecessary tooth loss based on Defendant’s policy 

of not providing scaling and root planing for those prisoners diagnosed with early 

to moderate to advanced periodontal disease. Failure to accurately diagnose (no 

probing or x-rays at the intake examination), failure to establish a treatment plan 

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that includes scaling and root planing for prisoners with moderate to advanced 

periodontal disease, and the 24-months wait policy that delays even a prophy, 

combines to create a dental system where prisoners are placed at risk of harm, such 

as loss of tooth support (bone), loss of teeth, and pain (from periodontal abscesses). 

Further, after the expiration of the 24-months wait, prisoners are subjected to long 

new wait lists before any treatment is provided leading to further decay and/or 

tooth loss and progression of periodontal disease. Defendant Washington’s policy 

does not properly or adequately diagnose periodontal disease by failing to 

periodontally probe and measure pocket depths and chart such results and/or take 

proper diagnostic x-rays and/or Defendant’s policy does not treat adequately 

periodontal disease even when it is identified.

Relief

WHEREFORE, for the reasons stated above, this Court should:

A. Accept jurisdiction of this matter;

B. Certify this matter as a class action as to the four proposed classes;

C. Declare that the rights of Plaintiffs and class members were violated by the 

actions of the Defendants;

D. Find that the actions of the Defendants, as to the provision of dental care, 

subjected the Plaintiffs and the class members to a violation of their Eighth 

Amendment rights against cruel and unusual punishment;

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E. Issue an injunction against the Defendants to:

1. Require Defendant Washington to hire sufficient dental and 

clerical/administrative staff to ensure requirements of the Eighth 

Amendment are met to provide timely dental care and treatment, including 

timely treatment of tooth decay by timely diagnosis and restorative dental 

care and treatment, and accurate diagnosis of periodontal disease and to 

provide timely diagnosis and proper non-surgical periodontal treatment.

2. Require	Defendant	Washington	to	alter	and	amend	policy	to	mandate	a	

complete	dental	intake/initial	examination	 to	include	a	comprehensive	

treatment	plan,	diagnostic	x-rays	and	require	periodontal	screening	and	

recording	 (PSR)	 at	 a	 minimum,	 i.e.,	 probe,	 measure	 and	 chart	

periodontal	 pocket	 depths	 to	 screen	 for	 periodontal	 disease;	 amend	

policy	to	reflect	proper	American	Dental	Association	(ADA)	periodontal	

disease	 staging	 based	 on	 periodontal	 pocket	 depths	 representing	 the	

current	standard	of	dental	care	in	screening	for	periodontal	disease;	and	

ensure	 Defendant’s	 policy	 include	 timely	 appropriate	 non-surgical	

treatment	for	periodontal	disease.

3. Eliminate	 the	 24-months	 quarantine	 period	 in	 which	 prisoners	 are	

denied	routine	dental	care	and	treatment	during	the	first	24-months	of	

confinement,	 routine	 dental	 care	 to	 include	 timely	 treatment	 for	

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restorable	dental	caries,	timely	non-surgical	periodontal	treatment,	and	

timely	delivery	of	complete	and	partial	dentures.

4. Require	 Defendant	 Washington	 to	 provide	 timely	 routine	 dental	

treatment	 for	 those	 who	 have	 served	 more	 than	 two	 years	 by	 hiring	

sufficient	dental	staff	to	provide	timely	dental	care	and	reduce	wait	list	

dental	care	requests	 to	a	reasonable	 time	 to	prevent	needless	physical	

pain	and	 suffering,	 tooth	 pain,	 tooth	 sensitivity	and	 unnecessary	 tooth	

loss	irrespective	of	the	two-year	quarantine.

5. Eliminate	 the	 denture	 policy	 prohibition	 that	 a	 prisoner	 who	 received	

denture(s)/partial(s)	must	wait	five	years	before	replacement	or	repair	

of	denture(s)/partial(s)	where	 the	denture/partial	 fractures,	breaks	or	

requires	a	repair	to	ensure	the	denture/partial	serves	its	purposes.

6. Require	 timely	 denture/partial	 delivery	 to	 be	 completed	 within	 three	

months	 after	 the	 first	 impressions	 are	 taken,	 including	 delivery	 of	

denture/partial	for	the	first	time	and	replacements.

7. Require timely denture/partial delivery to be completed within three months 

after the first impressions are taken, including delivery of denture/partial for 

the first time and replacements.

8. Require Defendants to implement policies to mandate and enforce 

restoration of restorable teeth versus a policy favoring extraction of 

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restorable teeth to prevent needless tooth loss and properly document steps 

taken to determine whether restoration or extraction was needed based on 

tooth health, which includes proper diagnostic x-ray(s), exam and PSR.

9. Provide soft food diet for inmates that are unable to masticate food due to 

tooth loss/extraction while waiting for dentures to be fabricated.

10.Modify the Urgent Care definition to include all complaints of dental pain.

F. To award attorneys’ fees and costs; and

G. To grant any other relief that is just and equitable.

Respectfully submitted,

/s/ Daniel E. Manville

Daniel E. Manville (P39731)

Director, Civil Rights Clinic

Co-Counsel for Plaintiff

Michigan State University College of Law

PO Box 1570

East Lansing, MI. 48826

517-432-6866 (office)

517-432-6990 (fax)

daniel.manville@law.msu.edu

Certificate of Service

I, Daniel E. Manville certify that on January 14, 2018, I filed the above document 

with the ECF system, which then sent it to Defendants’ counsel.

/s Daniel E. Manville

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