UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARLES EDKINS,

Plaintiff, No. 15-10615

v. District Judge Matthew F. Leitman

Magistrate Judge R. Steven Whalen

UNITED STATES OF AMERICA,

Defendant.

 /

 REPORT AND RECOMMENDATION

On February 18, 2015, Plaintiff Charles Edkins (“Plaintiff”), formerly housed at

Federal Correctional Institution (“FCI”) Milan in the custody of Bureau of Prisons, filed a

pro se civil complaint under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 

Currently before the Court is Defendant Scott Kevin Dubois, D.D.S.’s (“Defendant’s”)

September 4, 2015 Motion for Summary Judgment [Doc. #22], which has been referred for

a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For the reasons set

1

forth below, I recommend that the motion be GRANTED, dismissing Dr. Dubois WITH

PREJUDICE. 

Plaintiff originally filed suit against a similarly named dentist (Matthew Scott 1

Dubois, D.D.S.) but later stipulated to his dismissal. Docket #21, 26, 28. 

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I. BACKGROUND

Between December, 2008 and March, 2011, Plaintiff spent most of a threeyear, five-month sentence at FCI Elkton (“Elkton”). Plaintiff was released from Bureau of

Prisons (“BOP”) custody in March, 2011 but violated the terms of his supervised release and

was sentenced to an additional two years in prison beginning in January, 2012. The present

Complaint pertains to his dental treatment at FCI Milan (“Milan”) beginning January, 2012

until his release the following year. Defendant’s Brief, 4, Docket #22. 

Plaintiff makes the following allegations regarding his dental care during his

incarceration at Milan. 

Prior to his January, 2012 arrival at Milan, Plaintiff filed grievances regarding his

dental care while at Elkton, making regional BOP officials “fully aware” of his periodontic

problems by submitting x-rays, medical opinions and comprehensive notes showing his

“advanced perio disease as a diabetic.” Complaint at 4 of 12. In November, 2010, Dr.

Higham, D.D.S. found that Plaintiff was “‘hopelessly periodonically involved.’” Id. During

the incarceration at both Elkton and Milan, Plaintiff was treated for symptoms of diabetes. 

Id. at 5. Despite his well-established history of periodontic disease and diabetes at the time

of his arrival at Milan, he was seen by a dental hygienist only once between January, 2012

and August, 2013. Id. at 6. As a result, Plaintiff continues to suffer from “excruciating

pain;” “deterioration of the teeth and gums,” and an “inability to digest food properly.” Id.

at 2. 

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II. STANDARD OF REVIEW

Summary judgment is appropriate where “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 a judgment

as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the

non-moving party must show sufficient evidence to create a genuine issue of material fact.

Klepper v. First American Bank, 916 F.2d 337, 341-42 (6 Cir. 1990). Drawing all th

reasonable inferences in favor of the non-moving party, the Court must determine “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary

judgment is appropriate “against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). When the “record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party,” there is no genuine issue of material fact, and summary

judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6 Cir. 2000). th

Once the moving party in a summary judgment motion identifies portions of the

record which demonstrate the absence of a genuine dispute over material facts, the opposing

party may not then “rely on the hope that the trier of fact will disbelieve the movant’s denial

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of a disputed fact,” but must make an affirmative evidentiary showing to defeat the motion. 

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6 Cir. 1989). The non-moving party th

must identify specific facts in affidavits, depositions or other factual material showing

“evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at

252 (emphasis added). If, after sufficient opportunity for discovery, the non-moving party

cannot meet that burden, summary judgment is clearly proper. Celotex Corp., 477 U.S. at

322-23.

III. ANALYSIS

Defendant Dr. Dubois, Milan’s Chief DentalOfficer, arguesthatPlaintiff cannot show

that the alleged need for more frequent teeth cleanings than administered by the BOP rose

to the level of an Eighth Amendment violation. Defendant’s Brief, 8-15, Docket #22. He 2

2

Claims regarding Plaintiff’s dental care at Elkton were dismissed without prejudice

under Fed. R. Civ. P. 12(b)(2) on July 23, 2014. Case No. 13-11364. Plaintiff does not name

“Elkton” defendants in the present case. 

Plaintiff, proceeding pro se, claims that Defendant is attempting “to re-characterize

[his] FTCA complaint as being filed under some Bivens theory.” Response at 29. However,

Plaintiff’s claim of Eighth Amendment violations sounds under Bivens. “Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971) acknowledged for the first time, an implied cause of action for damages

against a federal agent for the violation of a citizen's constitutional rights.” Baker v. Bannum

Place of Saginaw, LLC, 2012 WL 3930122, at *4 (E.D.Mich. September 10,

2012)(Edmunds, J.)(citing Correctional Services Corp. v. Malesko, 122 S.Ct. 515, 519, 534,

151 L.Ed.2d 456 (1971)). The fact that an individual claim is analyzed under Bivens does

not by itself extinguish an FTCA claim against the United States. “Bivens actions and FTCA

actions are parallel and complementary; a federal prisoner maymaintain a Bivens suit against

individual federal officers even though the underlying allegations could also support an

FTCA suit against the United States.” Mann v. United States, 2016 WL 1253267, *2

(E.D.Mich. March 31, 2016))Tarnow, J.)(citing Left Fork Min. Co., Inc. v. Hooker, 775 F.3d

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contends further that even assuming the presence of a constitutional violation, the

constitutional right to a teeth cleaning every three months is not clearly established and thus,

he is entitled to qualified immunity. Id. at 15-16. 

In his response, Plaintiff reiterates that Defendant Dr. Dubois was fully aware that the

dental condition was exacerbated by diabetes and showed deliberate indifference by

approving only one teeth cleaning over the course of Plaintiff’s incarceration at Milan. 

Response, 1-11, Docket #29. 

A. The Eighth Amendment Claim

1. Applicable Law

The Supreme Court has held that Under the Eighth Amendment, prisoners have a

constitutional right to medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Prison

officials may not act with deliberate indifference to the medical needs of their prisoners. Id.

at 104. An Eighth Amendment claim has two components, one objective and the other

subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Comstock v. McCrary, 273 F.3d

693, 702 (6 Cir. 2002). Under the objective component, “the plaintiff must allege that the th

medical need at issue is ‘sufficiently serious.’” Id. Under the subjective component, “the

plaintiff must allege facts which, if true, would show that the official being sued subjectively

perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw

768, 777 (6th Cir. 2014)). 

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the inference, and that he then disregarded that risk.” Id. Deliberate indifference may be

established by showing an interruption of a prescribed plan of treatment, or a delay in

medical treatment. Id.; Caldwell v. Moore, 968 F.2d 595, 602 (6 Cir. 1992). th

However, mere negligence or misdiagnosis of an ailment does not rise to the level of

a constitutional violation. Estelle, 429 U.S. at 106; Comstock, 273 F.3d at 703. “Where a

prisoner has received some medical attention and the dispute is over the adequacy of the

treatment, federal courts are generally reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857,

860, fn.5 (6 cir. 1976). See also Sanderfer v. Nichols, 62 F.3d 151, 154 (6 Cir. 1999), th th

citing Estelle v. Gamble, supra (“Deliberate indifference, however, does not include

negligence in diagnosing a medical condition”). 

2. Plaintiff Cannot Establish an Eight Amendment Claim

For purposes of this motion, the Court assumes that Plaintiff’s dental condition was

sufficiently serious to satisfy the objective prong of the deliberate indifference test. It is on

the subjective prong that Plaintiff’s claim falters. 

As a preliminary matter, Plaintiff’s claim that he was incarcerated at Milan for 19

months as alleged in the Complaint is contradicted by his own exhibits showing that his stint

at Milan began in January, 2012 and ended in April, 2013. Response at 36. By Plaintiff’s

own account, he received a cleaning by his own dentist in October, 2011, by BOP hygienist

Nicole Langenderfer in July, 2012, and again by his own dentist in April, 2013. While the

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Complaint alleges that he only received one cleaning in “19 months,” his own records show

that he received cleanings at approximately nine-month intervals for the period in question. 

Complaint at 6. 

Further, none of the records supports the contention that Defendant perceived, then

disregarded a risk to Plaintiff’s health or well-being. Defendant performed a dental

examination six days after Plaintiff’s arrival at Milan. Defendant’s Exhibit A, Docket #22-2

at 11. According to the treating records, he rated Plaintiff’s dental hygiene “poor,” but after

measuring Plaintiff’s gums consistent with technique described by Community Periodontal

Index of Treatment Needs (“CPITN”), determined that Plaintiff had only a “low risk” of

periodontal disease under the BOP’s periodontal disease risk protocols. Defendant’sExhibits

D at 1-2, Exhibit E, Declaration of Scott Dubois, D.D.S. at ¶ 8, Docket #22-6 at 16, 28. 

Defendant Dr. Dubois states that Plaintiff did not inform him of a history of diabetes or

periodontal disease at the time of screening, stating further that if he had been informed of

the “diabetes or a history of periodontal disease,” he would have followed his usual practice

of noting the record. Id. at ¶ 12. 

Further, Defendant’s exhibits show that in April, 2012, Plaintiff was advised to “sign

up for dental sick call” if he had “urgent dental concerns” between scheduled appointments.

Defendant’s Exhibit A, Docket #22-2 at 33. Plaintiff does not allege that he signed up for

sick call and the records do not show that he requested urgent care. Likewise, Defendant

states that Plaintiff did not request emergency dental treatment or complain of dental pain

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between July, 2012 and his April 23, 2013 release. Defendant’s Exhibit E, Declaration at

¶ 14. The records do show that he was seen on May 7, 2012 and June 14, 2012 by both

hygienist Langenderfer and University of Michigan dental students. Defendant’s Exhibit D,

Docket #22-5 at 3-6. Dental records attached to the present motion and Dr. Dubois’

declaration indicate that Plaintiff received teeth cleaning with “scaling and root planing” in

all four quadrants in July, 2012. Id., 22-5 at 7-8, Declaration at ¶ 13. Dental records from

an examination made the week after the April, 2013 release fail to show that Plaintiff’s dental

condition deteriorated due to Defendant’s failure to administer more aggressive treatment. 

Instead, the records state that “probing depths” were “stable.” Response at 36. 

Plaintiff nonetheless disputes Defendant’s account of events. He states that his 

November, 2011 letter to the “legal” department of BOP placed Defendant on notice that he

experienced severe periodontal disease. Id. at 46-50, Docket #29-1 at 1-2. In support of his

contention that Defendant was aware ofthe periodontic history, Plaintiff has provided dental

records showing that upon entering Elkton in 2008, he was diagnosed with “chronic

periodontal disease.” Id. at 43. November, 2010 Elkton records state that at least one tooth

was “hopelessly periodontally involved.” Id. at 44. Plaintiff’s March, 2012 Step One

grievance states that he informed Defendant at the January, 2012 screening that he had

diabetes and a history of periodontic disease. Defendant’s Exhibit A, Docket #22-2 at 30. 

He presents dental treatment records showing that between his January, 2011 release from

Elkton and his re-incarceration at Milan in January, 2012, he received teeth cleanings every

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three months. Response at 3, 33-36. Post-incarceration, October, 2013 dental records state

that Plaintiff was advised to seek treatment from a periodontist. July, 2014 dental records

state that Plaintiff experienced “advanced periodoniti.” Id. at 37. 

Defendant is nonetheless entitled to summary judgment. Assuming that Defendant

was made aware of the history of periodontic disease at the time of the screening, the

January, 2012 examination and evaluation ofthe gums showed that Plaintiff was nonetheless

a “low” periodontal risk as of that month. Defendant’s Exhibit D at 1-2, Exhibit E,

Declaration, at ¶ 8, Docket #22-6 at 16-17. Under the BOP protocol, treatment for low risk

individuals requires an “annual exam by [a] general dentist and prophylaxis as needed.” Id.,

Docket #22-6 at 17. While Defendant’s determination, consistent with the BOP protocols,

differs from the recommendation of Plaintiff’s personal dentist, Plaintiff cannot show that

Defendant’s adherence to the BOP protocols amounts to a constitutional violation. Allison

v. Martin, 2009 WL 2885088, *6 (E.D. Mich. Sept. 2, 2009)(“[W]here an inmate alleges

deliberate indifference butthe record demonstrates that the inmate received medical attention

and is, in essence, filing suit because he disagrees with certain decisions made by the medical

staff, the defendant is entitled to summary judgment”).

Plaintiff also disputes the July, 2012 dental records showing that he received “scaling

and root planing” in all four quadrants. Response at 6. He contends that on the day of the

alleged aggressive treatment, the hygienist “just did a normal cleaning and I was out of her

chair in no more than 45 minutes.” Id. Once again, assuming the truth of Plaintiff’s claim

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that he did not receive scaling and root planing, he acknowledges that he received a 45-

minute teeth cleaning consistent with the BOP protocol for an individual at low risk for

periodontal disease. He does not deny that prior to the July, 2012 cleaning, he was also 

evaluated by the same hygienist in May and June, 2012. 

Plaintiff’s claim that Defendant was deliberately indifferent to his dental condition or

that the condition deteriorated as a result of Defendant’s alleged non-feasance is undermined

by other portions of the record. Dental examination notes by Plaintiff’s personal dentist

created only one week after Plaintiff’s release state that the periodontic condition was

“stable.” Response at 36. Plaintiff cites McCarthy v. Place, 313 Fed.Appx. 810, 816, 2008

WL 5069039, *6 (December 2, 2008), in which the Sixth Circuit reversed a grant of

summary judgment to a dentist who declined to fill a cavity for seven month despite being

aware that the plaintiff was in “significant pain.” Here too, Plaintiff alleges that he

experiences “pain and suffering” as a result of Defendant’s failure to provide more frequent

treatment. Response at 8. However, none of the evidence, including the Milan dental

records, Plaintiff’s March, 2012 grievance, or the dental records pertaining to his condition

after release indicate that he experienced discomfort or pain during the 15 months Defendant

oversaw his treatment. As noted above, Plaintiff did not request an emergency examination

for pain or urgent dental treatment during his incarceration at Milan. Whereas in McCarthy,

the defendant dentist admitted that he was aware of the plaintiff’s longstanding reports of

pain resulting from an unfilled cavity, none of the records in this case suggests that Plaintiff

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experienced significant pain during his time at Milan, much less that he made Defendant

aware of his discomfort. 

Plaintiff has also included a February, 2014 letter byMatthew R. VanderLaan, D.D.S.

stating that Plaintiff required dental cleanings at three-month intervals. Docket #29-2 at 3. 

Dr. VanderLaan states that his May, 2011 examination revealed “significant levels of

periodontal destruction and degeneration” consistent with “significant lapse in proper dental

and periodontal care.” Id. However, Dr. VanderLaan’s finding of “significant lapse in

proper dental and periodontal care” refers to Plaintiff’s condition following his January, 2011

release from Elkton. Given that Plaintiff was not incarcerated at Milan until January, 2012,

it is of no import that Plaintiff’s dental care was possibly substandard prior to May, 2011. 

Notably, none of the dental records created subsequent to Plaintiff’s April, 2013 release from

Milan suggest that his care by Defendant between January, 2012 and April, 2013 was

deficient. 

Because Plaintiff cannot show a constitutional violation byDefendant Dr. Dubois, the

claims are also barred by qualified immunity. “Under the doctrine of qualified immunity,

‘government officials performing discretionaryfunctions generallyare shielded fromliability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Phillips v. Roane

County, Tenn., 534 F.3d 531, 538 (6 Cir. 2008)(citing Harlow v. Fitzgerald, 457 U.S. 800, th

818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In determining whether claims are barred by

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qualified immunity, the courts consider (1) did the defendant violate a constitutional right,

and (2) was the right clearly established to the extent that a reasonable person in the

defendant's position would know that the conduct complained of was unlawful. Saucier v.

Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). See also Pearson v. Callahan,

555 U.S. 223, 129 S.Ct. 808, 812, 172 L.Ed.2d 565 (2009). In the absence of a constitutional

violation, the court need not determine whether the right in question was “clearly

established.” Dunigan v. Noble, 390 F.3d 486, 495 (6th Cir.2004). 

CONCLUSION

For these reasons, I recommend that Defendant’s Motion for Summary Judgment

[Doc. #22] be GRANTED, dismissing claims against Defendant Scott Kevin Dubois WITH

PREJUDICE. 

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. th

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Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than 20 pages in length

unless by motion and order such page limit is extended by the court. The response shall

address specifically, and in the same order raised, each issue contained within the objections.

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: April 10, 2016

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

April 10, 2016, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the 

Honorable R. Steven Whalen

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