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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHARLES EDKINS, 

 Plaintiff, Case No. 15-cv-10615 

 Hon. Matthew F. Leitman 

v. 

UNITED STATES OF AMERICA et al., 

 Defendants. 

___________________________________/ 

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE REPORT 

AND RECOMMENDATION (ECF #33) AND GRANTING DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (ECF #22) 

 On February 18, 2015, Plaintiff Charles Edkins (“Edkins”) filed an action 

under the Federal Tort Claims Act (28 U.S.C. § 1346(b)) and Bivens v. Six 

Unknown Named Agents of Federal Bureau of Narcotics, 503 U.S. 388 (1971) 

against Defendants United States of America and Scott Kevin Dubois, D.D.S. 

(“Dr. Dubois”). (See Compl., ECF #1.) Edkins alleges that Dr. Dubois violated 

his Eighth Amendment rights by failing to provide him with adequate dental care 

while he was in the custody of the Federal Bureau of Prisons (the “BOP”). (See id.

at 2, Pg. ID 2.) Dr. Dubois moved for summary judgment on Edkins’ Bivens claim 

(the “Motion”). (See ECF #22 at 7, Pg. ID 68.) On April 10, 2016, the assigned 

Magistrate Judge issued a Report and Recommendation in which he recommended 

that the Court grant summary judgment in favor of Dr. Dubois (the “R&R”). (See

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ECF #30.) Edkins has now filed timely objections to the R&R (the “Objections”). 

(See ECF #33.) For the reasons provided below, the Objections are 

OVERRULED, and the Motion is GRANTED. 

RELEVANT FACTUAL BACKGROUND

 Edkins is a former inmate of the BOP. (See Compl., ECF #1 at 4, Pg. ID 4.) 

Edkins claims that when he began serving his sentence in 2009 at the Federal 

Correctional Institution in Elkton, Ohio (“Elkton”), he suffered from “chronic 

periodontal disease.” (Compl., ECF #1 at 4, Pg. ID 4.) Edkins’ medical records 

from Elkton show that R. Hingham, D.D.S. removed one of Edkins’ teeth in 

November 2010 because it was “hopelessly periodontally involved.” (ECF #22-2 

at 7, Pg. ID 195.) A few months later, in March 2011, Ekdins was released from 

Elkton on supervised release. (See ECF #22-2 at 2, Pg. ID 88.) 

 While Edkins was on release, he sought dental treatment from M. 

VanderLaan, D.D.S. (“Dr. VanderLaan”), a private dentist with the Cherry Street 

Dental Clinic. (See ECF #22-3 at 3, Pg. ID 122.) Dr. VanderLaan noted that 

Edkins “may benefit from seeing a periodontist for periodontal [disease]” and 

recommended that Edkins see a dentist every three months. (Id. at 6, Pg. ID 125.) 

 In January 2012, Edkins violated the terms of his supervised release and was 

returned to the BOP’s custody. (See ECF #22-2 at 2, Pg. ID 88.) Edkins served 

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the remainder of his sentence at the Federal Correctional Institution in Milan, 

Michigan (“Milan”) from January 25, 2012 through April 23, 2013. (See id.) 

 While Edkins was incarcerated at Milan, he encountered Dr. Dubois. On 

January 31, 2012, Dr. Dubois performed a full dental screening pursuant to BOP 

policy. (See ECF #23-1 at 4, Pg. ID 207; ECF #22-6 at 2, Pg. ID 140.) Although 

Dr. Dubois noted that Edkins’ “oral hygiene was found to be poor,” he concluded 

that Edkins’ risk for periodontal disease was “low.” (ECF #22-6 at 2-3, Pg. ID 

140-41; see also ECF #22-5 at 1, Pg. ID 131.) Dr. Dubois attested that he followed 

the BOP’s Clinical Practice Guidelines with respect to Edkins’ dental care 

following the exam. (See ECF #22-6 at 3, Pg. ID 141.) Under those guidelines, 

“the protocol for patients with low periodontal risk is an annual exam by a general 

dentist and prophylaxis as needed.” (Id.; see also id. at 17, Pg. ID 155.) 

Edkins’ dental records show that he received treatment in accordance with 

these guidelines. For example, he received oral hygiene instruction in May and 

June of 2012. (See ECF #22-5 at 3-6, Pg. ID 133-36.) And on July 16, 2012, 

Edkins was given complete prophylaxis, which included “scaling and root planing 

of all four quadrants.” (ECF #22-6 at 3, Pg. ID 142; ECF #22-5 at 7, Pg. ID 137.) 

Moreover, Edkins was informed that if he suffered from “any [] urgent dental 

concerns,” he would be permitted to “sign up for dental sick call.” (ECF #22-2 at 

33, Pg. ID 119.) However, there is no evidence in the record that Edkins 

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complained to the BOP staff that he suffered from dental pain or experienced a 

dental emergency while he was housed at Milan. (See ECF #22-6 at 3, Pg. ID 

141.) 

 On April 23, 2013, Edkins was released to a half-way house, and he 

completed his sentence on August 16, 2013. (See id.; ECF #22-2 at 2, Pg. ID 88.) 

THE CLAIM AGAINST DR. DUBOIS 

 Edkins filed his Complaint on February 18, 2015. (See ECF #1.) Edkins 

claims that his “lack of periodontal treatment [while incarcerated] is a violation of 

the 8th Amendment protecting inmates from cruel and unusual punishment.” (Id.) 

 With respect to Dr. Dubois, Edkins alleges that “Chief Dental Officer 

Dubois, DDS and BOP medical staff knew of [his] existing periodontal disease 

disclosed by the BOP medical file transferred by Elkton FCI to Milan, FCI.” (Id.

at 3, Pg. ID 3.) Edkins has further alleged that “[t]he conditions of endless pain 

and permanent damage were conditions that clearly posed a substantial risk of 

serious harm and staff including Dr. Dubois exhibited a sufficient state of mind 

creating deliberate indifference to my documented periodontal disease.” (Id.) 

DR. DUBOIS’ MOTION FOR SUMMARY JUDGMENT 

 On September 4, 2015, Dr. Dubois moved for summary judgment. (See 

ECF #22.) In the Motion, Dr. Dubois argued that in order for Edkins to show an 

Eighth Amendment violation, he must satisfy both an objective and a subjective 

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component. With respect to the objective component, Dr. Dubois argued that 

Edkins failed to show that his dental condition was “sufficiently serious” to 

demonstrate a constitutional violation. Dr. Dubois asserted that Edkins was 

“complaining about the frequency of routine dental care at Milan, which is not 

actionable” under the Eighth Amendment. (Id. at 16, Pg. ID 77.) 

 With respect to the subjective component, Dr. Dubois argued that Edkins 

failed to “provide any evidence that Dr. Dubois subjectively perceived facts from 

which to infer substantial risk, that he did in fact draw the inference of substantial 

risk, or that he disregarded the risk.” (Id. at 18-19, Pg. ID 79-80.) To support his 

argument, Dr. Dubois submitted a sworn affidavit with the Motion describing the 

treatment that he provided to Edkins while he (Edkins) was incarcerated at Milan. 

(See ECF #22-6 at 1-5, Pg. ID 139-43.) In his affidavit, Dr. Dubois attested that he 

conducted a periodontal risk evaluation of Edkins and determined that Edkins had 

a “low periodontal risk.” (Id. at 3, Pg. ID 141.) Dr. Dubois added that he “did not 

see any other signs of periodontal risk, including (1) 4-6 millimeter depth of 

periodontal pockets; (2) significant tooth mobility; (3) significant swelling or 

exudate; or (4) molar furcation involvement.” (Id.) Dr. Dubois further averred 

that there was “no record of any complaint of dental pain or dental emergency for 

which [Edkins] requested treatment,” and that “[h]ad [Edkins] informed me of his 

diabetes or history of periodontal disease at the screening exam, it would have 

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been my practice to note these in the record. There are no such notes. No 

additional treatment would be recommended, even were those risk factors present 

. . . .” (Id.) Finally, Dr. Dubois stated that he “had no knowledge of [Edkins] 

experiencing dental pain during his incarceration at Milan.” (Id.) 

EDKINS’ RESPONSE TO THE MOTION 

 On December 11, 2015, Edkins filed his response to the Motion. (See ECF 

#29.) Edkins did not submit any affidavits with his response, nor did he submit 

any deposition transcripts. The entirety of Edkins’ argument on the subjective 

component of his Eighth Amendment claim against Dr. Dubois was as follows 

(verbatim):1

This requires a showing that prison official(s) knew of 

and acted with deliberate indifference towards an 

Inmate’s known medical condition and his health and 

safety (Wilson v Seither IBID and Talal v White 403 

F. 3d at 426 (CA-6)).This was clearly satisfied since 

Chief Dental Officer Dubois and the entire Dental BOP 

staff knew of my existing Periodontal disease condition 

upon arriving at Milan FCI in January/2012.Not only was 

this condition noted in my file at Elkton FCI when I left 

there in early 2011 (Plaintiff’ Exhibit F ,P. 2-3) and 

Plaintiff mailed on 11/12/22 ( 2 months before entering 

Milan FCI) a very detailed letter with Dr. Vanderlaan’s 

Dental Perio notes (noting the necessity for 3 month 

dental cleaning checkups), x rays and most importantly 

the Perio charting clearly demonstrating the extent of the 

Periodontal damage (Plaintiff’s Exhibit G/P.1-7 and 

Exhibit E pages 8 and 9) (acknowledged as received by 

 

1

 The quoted text includes Edkins’ original spelling, punctuation, capitalization, 

grammar, and bold emphasis. 

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the Government in it’s brief (Doc # 22-3 Pages 3 thru 

8).In (Brown V Bargey 207 F. 3d., 863 9CA-6 2003)) 

the conditions of endless pain and permanent damage 

were conditions that clearly posed a substantial risk of 

serious harm and staff including Dr. Dubois exhibited a 

sufficient state of mind creating intentional indifference 

to Plaintiff’s well documented periodontal disease. This 

condition continues today since Medicaid or Medicare 

does not cover these very expensive treatments. (Flanory 

v Bonn 604 F. 3d. 246 (CA-6/2010)). 

(Id. at 8-9, Pg. ID 236-37.) 

THE R&R

On April 10, 2016, the assigned Magistrate Judge issued the R&R in which 

he recommended that the Court grant summary judgment in favor of Dr. Dubois. 

(See ECF #30 at 12, Pg. ID 296.) 

 The Magistrate Judge agreed with Dr. Dubois that Edkins had failed to 

present evidence on the subjective component of his claim – i.e., that Edkins failed 

to present evidence that Dr. Dubois was aware of a substantial risk of serious harm 

to Edkins’ health and that Dr. Dubois consciously disregarded that risk. (See id. at 

7, Pg. ID 291.) The Magistrate Judge further concluded that Edkins’ claim 

essentially amounted to a disagreement with the course of treatment that he 

received while he was incarcerated at Milan, and the Magistrate Judge noted that 

such a disagreement falls short of an Eighth Amendment violation. (See id. at 9, 

Pg. ID 293.) 

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THE OBJECTIONS

 Edkins filed his Objections on May 20, 2016. (See ECF #33.) Edkins has 

made six individual objections. They are set forth verbatim below. 

GOVERNING LEGAL STANDARD

This Court reviews de novo the portions of the R&Rs to which a party has 

objected. See Fed. R. Civ. P. 72(b)(3). 

A movant is entitled to summary judgment when it “shows that there is no 

genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,

712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, “the 

court must view the evidence in the light most favorable to the non-moving party 

and draw all reasonable inferences in its favor.” Id. “The mere existence of a 

scintilla of evidence in support of the [non-moving party’s] position will be 

insufficient; there must be evidence on which the jury could reasonably find for 

[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate 

when “the evidence presents a sufficient disagreement to require submission to a 

jury.” Id. at 251-52. Indeed, “[c]redibility determinations, the weighing of the 

evidence, and the drafting of legitimate inferences from the facts are jury 

functions, not those of a judge . . . .” Id. at 255. 

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ANALYSIS

A. The Eighth Amendment Framework

 As described above, there are two components to an Eighth Amendment 

deliberate indifference claim, one objective and the other subjective. See Farmer 

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

693, 702 (6th Cir. 2011). To satisfy the objective component, a plaintiff must 

show that “the medical need at issue is ‘sufficiently serious.’” Comstock, 273 F.3d 

at 702 (quoting Farmer, 511 U.S. at 834). To satisfy the subjective component, a 

plaintiff must show that “the official being sued subjectively perceived facts from 

which to infer substantial risk to the prisoner, that [s]he did in fact draw the 

inference, and that [s]he then disregarded that risk.” Id. 

 In the R&R, the Magistrate Judge did not explicitly determine whether 

Edkins suffered from a dental condition that constituted a “sufficiently serious” 

medical need. (See R&R, ECF #30 at 6, Pg. ID 290.) Instead, the Magistrate 

Judge “assume[d] that [Edkins’] dental condition was sufficiently serious to satisfy 

the objective prong of the deliberate indifference test,” and the Magistrate Judge 

concluded that “it is on the subjective prong that [Edkins’] claim falters.” (Id.) 

Accordingly, the Court will address whether Edkins’ Objections establish that the 

Magistrate Judge erred with respect to the subjective component of the deliberate 

indifference framework. 

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B. The Objections2

1. Edkins’ First Objection 

 Edkins’ first objection to the R&R provides as follows: 

“Deliberate Indifference may be established by showing 

an interruption of a prescribed plan of treatment or delay 

in Medical treatment”.Caldwell v. Moore, 968 F.2d 

595,602 (6th Circuit 1992). This is precisely what 

Defendant Dubois did upon my arrival at Milan FCI in 

January/2012. My dentist Dr. Vanderlaan prescribed and 

is on the record that I receive dental maintenance every 3 

months due to the extent of the Periodontal damage 

caused by my extended stay at Elkton FCI. This is noted 

by Dr. Higham in Novebmer/2010 when he had to extract 

a tooth and turning to page 3 of 3 of Plaintiff’s exhibit F 

Dr. Higham notes; ‘Indication of hard tissues of 

teeth,other”.Dr. Vanderlaan’s findings/x rays/notes were 

sent by Plaintiff to the BOP in November/2011 just 2 

months prior to entering Milan FCI and were 

acknowledged by the BOP as having received them ( 

plaintiff’s Exhibit G).Upon arriving at Milan FCI within 

2 weeks I was given a superfluous exam by Dr. Dubois;I 

told him to check the BOP medical file for the file sent 

and explained the prescribed treatment by my dentist Dr. 

Vanderlaan. All to no avail.I repeatedly sent “cop outs” 

to the office; going to dental sick call and told to take 

some aspirin, as it was available at the prisoner’s store. In 

Flanory v. Bonn 604 F.3d. 246 (CA-6/2010) Plaintiff 

had suffered the same fate from Periodontal disease and 

had a tooth extracted as well. 

(Objections, ECF #33 at 2, Pg. ID 305.) 

 

2

 The quoted objections include Edkins’ original spelling, punctuation, 

capitalization, grammar, and bold emphasis. 

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 In his Objections, Edkins attempts to present a new factual allegation that he 

did not present to the Magistrate Judge: namely, that he told Dr. Dubois about the 

treatment plan prescribed by Dr. Vanderlaan. This is an important factual 

allegation because, as Edkins appears to acknowledge, in order to prevail on his 

interruption-of-prescribed-course-of-treatment theory, he must present evidence 

that Dr. Dubois actually knew of the course of treatment in question. But Edkins 

may not introduce this factual allegation for the first time in his Objections. 

Indeed, “[i]t is well established that a party may not raise an argument, advance a 

theory, or marshal evidence before a District Judge that was not fairly presented to 

the Magistrate Judge.” Childress v. Michalke, 2014 WL 3819347, at *3 (E.D. 

Mich. Aug. 4, 2014) (citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 

2000)). 

 There is an even more fundamental problem with this objection. The key 

factual allegations underlying the objection – that Edkins told Dr. Dubois about the 

prior prescribed treatment and complained about dental pain – are not supported by 

actual evidence in the record. As noted above, Edkins has not submitted any 

affidavits or deposition testimony supporting his newly-presented allegations. 

Because this objection is not supported by any evidence in the record, it lacks merit 

and is overruled. 

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 2. Edkins’ Second Objection 

Edkins’ second objection to the R&R challenges statements Dr. Dubois 

made in his sworn affidavit: 

On page 7 of the R and R Dr. Dubois was stated as 

saying that if “He had been informed of Plaintiff’s 

diabetes he would have noted it”. At the initial dental 

screening I informed him of my Diabetes as Dr. 

Malatinsky,MD Medical Director had me on metformin 

for the diabetes disease. Dr. Dubois intentionally never 

noted Plaintiff’s diabetes on his records. 

(Objections, ECF #33 at 3, Pg. ID 306.) 

 Edkins, however, did not challenge these statements in his response to Dr. 

Dubois’ Motion, and he may not do so in the first time in his Objections. 

Moreover, Edkins has not submitted his own affidavit contradicting Dr. Dubois’ 

statements. Thus, there is thus no evidence in the record contradicting Dr. Dubois’ 

statement. Edkins’ second objection is overruled. 

 3. Edkins’ Third Objection 

Edkins’ third objection to the R&R challenges the Magistrate Judge’s 

assessment of the May and June 2012 dental hygiene lectures he attended at Milan: 

On page 8 of the R and R that Plaintiff was “seen” by 

RDH Langenderfer and 2 U of M Dental students on 

May 7 and June 14,2012. This is another example of a 

very misleading statement since the 2 students from U of 

M were studying to be Hygienists at the undergraduate 

level. They were NOT dental school students at the 

graduate level. Between 12 and 15 diabetics including the 

Plaintiff were called to these two conference room talks 

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on the dates above. The only subject at these lectures was 

“diabetes and your dental health”.RDH Langenderfer just 

sat there at the head of the conference table and the 2 

students did all of the lecturing.NO EXAMINATIONS 

WERE PERFORMED ON ANY OF THE DIABETIC 

PRISONERS WHO WERE THERE AT THESE 2 

MEETINGS. The diabetic related lectures each lasted 

about 30 minutes which leads to this question;Dr. Dubois 

the chief dental officer stated above that he had no 

knowledge of plaintiff’s diabetes;Yet Plaintiff was 

selected with the other 12 to 15 diabetic inmates out of 

1,400 prisoners to participate? 

(Id.) 

 This objection is nonresponsive to the Magistrate Judge’s determination that 

Edkins failed to satisfy the subjective component of his Eighth Amendment 

deliberate indifference claim. The objection does not address Dr. Dubois’ state of 

mind with respect to Edkins’ alleged periodontal disease. The objection, at most, 

implies that Dr. Dubois knew that Edkins suffered from diabetes. But Edkins has 

not pointed to any evidence that contradicts Dr. Dubois’ sworn statement that 

“[h]ad plaintiff informed me of his diabetes . . . at the screening exam, it would 

have been my practice to note these in the record. There are no such notes.” (ECF 

#22-6 at 3, Pg. ID 141.) This objection is overruled. 

 4. Edkins’ Fourth Objection 

Edkins’ fourth objection to the R&R also challenges the Magistrate Judge’s 

assessment of the May and June 2012 dental hygiene lectures he attended at Milan:

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On page 10 of the R and R it is again misstated that 

Plaintiff was evaluated by the same RDH Langenderfer 

in May and June of 2012.Only the 2 U of M students did 

the 30 minute lectures on diabetes and dental care.No 

exams were given or any of the 12 to 15 attendees 

clinically evaluated. 

(Objections, ECF #33 at 3, Pg. ID 306.) 

 This objection also is nonresponsive to the Magistrate Judge’s determination 

that Edkins failed to satisfy the subjective component of his Eighth Amendment 

deliberate indifference claim. The objection makes no argument that Dr. Dubois 

knew that Edkins suffered from (allegedly) severe periodontal disease and failed to 

offer Edkins treatment with that knowledge. In fact, the objection does not 

mention Dr. Dubois or his state of mind at all. This objection is overruled. 

5. Edkins’ Fifth Objection 

Edkins’ fifth objection to the R&R suggests that he suffers from advancing 

periodontal disease that has negatively impacted his health: 

On page 11 of the R and R it is quoted as “it is of no 

import that while incarcerated prior to May/2011 that 

Plaintiff’s dental care was substandard”. Any Dental 

professional will be able to detail all of the progressive 

characteristics of not properly treating advancing 

periodontal disease. Left untreated this disease has and 

will negatively impact the Inmate’s health and diabetes. 

(Id. at 4, Pg. ID 307.) 

 This objection, once again, fails to address the subjective component of 

Edkins’ deliberate indifference claim on which the Magistrate Judge based the 

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R&R. This objection, thus, does not undermine the basis on which the Magistrate 

Judge recommended granting Dr. Dubois’ motion for summary judgment. The 

objection also implies that Edkins’ (alleged) periodontal disease was “[l]eft 

untreated.” But Edkins’ dental records from Milan – showing that he received a 

scaling and root planing procedure – belie this assertion. This objection is 

overruled. 

6. Edkins’ Sixth Objection 

Edkins’ sixth objection to the R&R provides as follows:

On page 9 of the R and R Dr. Dubois states that in the 

January/2012 dental screening of the Plaintiff that” 

Plaintiff was a low periodontal risk as of that month”. 

Under BOP protocol “treatment for low risk individuals 

requires an annual exam by a general dentist and 

prophylaxis as needed”. Which leads to the next question 

as to why Dr. Dubois stated under oath that He ordered 

his only Hygienist on staff to a conduct an extensive and 

timely four quad scaling and root planning of Plaintiff’s 

entire set of teeth/gums when according to BOP protocol 

is not required? Dr. Dubois states this was done in July 

2012 by RDH Langenderfer all in one visit and with no 

anesthesia. Plaintiff has had scaling and root planning 

done several times and each requires anesthesia since the 

hygienist is actually lifting the gums and scraping the 

tartar from your GUMS all the way to the roots. This a 

Red Herring since Dr. Dubois cannot have it both ways. 

(Id.) 

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 As with Edkins’ first and second objections to the R&R, he never raised this 

disagreement with Dr. Dubois’ sworn affidavit at any earlier point in this action. 

And, again, Edkins never submitted an affidavit to contradict Dr. Dubois. 

Additionally, Edkins’ objection misrepresents Dr. Dubois’ sworn statement. 

Edkins claims that Dr. Dubois “stated under oath that He ordered his only 

Hygienist” to conduct the scaling and root planing procedure. (Id.; emphasis 

added). Dr. Dubois, however, made no such attestation. Dr. Dubois stated only 

that Edkins “was given complete prophylaxis, including scaling and root planning 

[sic] of all quadrants.” (ECF #22-6 at 3, Pg. ID 141; emphasis added.) The 

records show only that a dental hygienist performed the procedure. Those records 

do not indicate whether Dr. Dubois ordered the procedure or whether Dr. Dubois 

believed it was necessary. Nor do they indicate that Dr. Dubois was aware that 

Edkins suffered from severe periodontal disease. For all of these reasons, this 

objection is overruled. 

CONCLUSION

 For the reasons provided above, IT IS HEREBY ORDERED that the 

Objections (ECF #33) are OVERRULED, and the Motion (ECF #22) is 

GRANTED.

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

Dated: July 27, 2016 UNITED STATES DISTRICT JUDGE 

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I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on July 27, 2016, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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