                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0734n.06
                           Filed: December 2, 2008

                                          No. 07-3974

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


GREGORY T. MCCARTHY,                                    )
                                                        )        ON APPEAL FROM THE
       Plaintiff-Appellant,                             )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE SOUTHERN
       v.                                               )        DISTRICT OF OHIO
                                                        )
MAITLAND PLACE, D.D.S.,                                 )                 OPINION
                                                        )
       Defendant-Appellee.                              )
                                                        )
                                                        )
                                                        )
                                                        )

BEFORE: CLAY and KETHLEDGE, Circuit Judges; and OLIVER, District Judge.*

       OLIVER, District Judge.        Plaintiff-Appellant Gregory T. McCarthy (“McCarthy”),

proceeding pro se, appeals the order of the district court granting Defendant-Appellee Maitland

Place, D.D.S.’s (“Dr. Place”) motion for summary judgment on McCarthy’s 42 U.S.C. § 1983 action

for alleged violations of his Eighth Amendment right to be free from cruel and unusual punishment.

For the following reasons, we REVERSE the judgment of the district court.

                                      I. BACKGROUND

A.     Factual History




       *
         The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
       McCarthy is a former inmate of the Chillicothe Correctional Institute (“CCI”) in Chillicothe,

Ohio. While incarcerated at CCI, McCarthy experienced a number of dental problems for which he

was examined by Dr. Place. (J.A. at 25.) Dr. Place contracted with the Ohio Department of

Rehabilitation and Corrections (“ODRC”) to provide dental care for inmates. (Id.) Dr. Place’s duties

included “providing dental care to inmates [such as] filling teeth, extracting teeth and cleaning teeth

in accordance with ODRC policies.” (Id.)

       During an initial examination on June 6, 2002, McCarthy complained of a severe toothache.

(J.A. at 3.) Dr. Place discovered that a cavity was the cause of McCarthy’s pain and recommended

a permanent filling for McCarthy’s tooth. Dr. Place also determined that McCarthy had several other

cavities and that two of McCarthy’s teeth needed to be extracted. (J.A. at 26.)

       Following McCarthy’s examination, Dr. Place decided to extract McCarthy’s teeth one at a

time. (J.A. at 36.) According to Dr. Place, the teeth needed to be removed one at a time because the

teeth that were to be extracted were on opposite sides of McCarthy’s mouth and the extraction of

both teeth at once could inhibit McCarthy’s ability to chew. (Id.) Thereafter, McCarthy was placed

on a list for the required extractions and fillings. (J.A. at 26.) According to Dr. Place, “[t]he lists

are required so inmates are treated in order for when the corresponding treatment was determined

as being necessary.” (Id.)

       According to McCarthy, he told Dr. Place that the teeth that needed to be extracted “were not

bothersome” and instead McCarthy requested that the fillings be given priority “because of the pain.”

(J.A. at 3.) In response, Dr. Place stated that he would not proceed with treatment unless McCarthy

abided by the treatment plan that called for the extractions first. (Id.) Dr. Place provided McCarthy

with a packet of ibuprofen for the pain, which contained approximately six tablets. (J.A. at 4.)


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Apparently displeased with the pain medication prescribed by Dr. Place, McCarthy filed an “Informal

Complaint” and, later, a “Formal Grievance.” (Id.)

       On July 31, 2002, the first of McCarthy’s teeth were extracted by Dr. Place. (J.A. at 26.)

However, the root of the tooth remained, and Dr. Place scheduled McCarthy for a follow-up visit.

(Id.) McCarthy continued to complain regarding the pain caused by his cavity and was given a

packet of ibuprofen by Dr. Place to alleviate the pain. (Id.)

       On August 21, 2002, McCarthy was seen by Dr. Place for the removal of the root of his tooth.

(J.A. at 26.) On October 8, 2002, McCarthy’s second tooth was extracted by Dr. Corbitt, another

dentist under contract with ODRC. (Id.) In November of 2002, McCarthy alleges that he could

“hardly eat Thanksgiving dinner because of [the] toothache. Angry, scared and in pain, Plaintiff

[had] no where else to turn and [wrote] an angry letter to [the] Warden and Chief Inspector in

desperation shaming their inaction.” (J.A. at 5.) On January 29, 2003, Dr. Place filled the tooth that

was causing McCarthy pain. (J.A. at 26.) On May 6, 2003, Dr. Corbitt filled McCarthy’s remaining

cavities. (Id.) In June of 2003, McCarthy was seen by CCI dental staff regarding complications with

the fillings administered in May. (J.A. at 5, 26-27.)

B.     Procedural History

       On February 1, 2005, McCarthy filed a complaint, pursuant to 42 U.S.C. § 1983, with the

United States District Court for the Southern District of Ohio, alleging that Dr. Place and others were

deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. (J.A. at

3.) McCarthy contended that Dr. Place was deliberately indifferent to his serious dental needs as a

result of the delay in the treatment of his cavity and the failure to provide more effective pain

medication.


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       Dr. Place moved for summary judgment, asserting that he was entitled to qualified immunity,

and filed an accompanying brief and affidavit in support of summary judgment. In his affidavit, Dr.

Place contended that he provided prompt and adequate dental treatment while abiding by the

guidelines established by the ODRC. Additionally, Dr. Place contended that he “provided ibuprofen

to alleviate the pain in the maximum amounts provided.” (J.A. at 26.) It does not appear, however,

that the ODRC guidelines were entered into the record. (Pl’s Br. at 5.) McCarthy, on the other hand,

opposed the motion and provided statements from other inmates who received dental treatments at

CCI. (J.A. at 23.) In particular, McCarthy provided a statement from Richard Carter, who described

receiving a temporary filling to alleviate the pain caused by a cavity. (Appellant’s J.A. at 1; J.A. at

11.)

       After reviewing the submissions of the parties, a magistrate judge issued a report and

recommendation denying Dr. Place’s motion for summary judgment. (Appellant’s J.A. at Exhibit

2.) In denying summary judgment, the magistrate judge found that McCarthy established a genuine

issue of material fact with respect to the seriousness of his dental problem and with respect to the

deliberate indifference displayed by Dr. Place in his treatment of McCarthy’s dental problem. (Id.)

Specifically, relying on Chance v. Armstrong, 143 F.3d 698 (2d Cir. 1998), the magistrate judge

found that there was a genuine issue of material fact regarding deliberate indifference because of the

allegations that Dr. Place was taking a less efficacious treatment route and the supporting statements

from CCI inmates. (Id.)

        Dr. Place filed an objection to the magistrate judge’s report and recommendation with the

district court, alleging that the magistrate judge erred in finding a dispute of material fact and in

denying qualified immunity. (J.A. at 28.) The district court sustained the objection, reversed the


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magistrate judge and entered an order granting summary judgment in favor of Dr. Place. The district

court, however, did not reach the question of qualified immunity. McCarthy now timely appeals.

                                 II. STANDARD OF REVIEW

       This court reviews a district court's grant of summary judgment de novo. Monette v.

Electronic Data Sys. Corp., 90 F.3d 1173, 1176 (6th Cir. 1996). Summary judgment is appropriate

if, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, 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 movant is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). As the moving party, Defendant bears the burden of showing

the absence of a genuine issue of material fact as to at least one essential element on each of

McCarthy's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). McCarthy, as the non-

moving party, must then present sufficient evidence from which a jury could reasonably find for him.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). This court must then determine

“whether the evidence presents 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.” Id. at 251-52. In making this

determination, this court must draw all reasonable inferences in favor of McCarthy. See Nat’l

Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997).

                                  III. LAW AND ANALYSIS

       Section 1983 establishes “a cause of action for deprivation under color of state law, of any

rights, privileges or immunities secured by the Constitution or laws of the United States.” Horn v.

Madison County Fiscal Court, 22 F.3d 653, 656 (6th Cir. 2002). To prevail in a § 1983 claim,

therefore, McCarthy must prove that Dr. Place, while acting under the color of state law, violated


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his constitutional rights. In West v. Atkins, 487 U.S. 42 (1988), the Supreme Court held that a private

doctor under contract to provide medical care to inmates at a state prison acted under the color of

state law and was therefore subject to suit under § 1983. Id. at 56. The Supreme Court reached this

conclusion after noting that “[c]ontracting out state prison medical care does not relieve the State

of its constitutional duty to provide adequate medical treatment to those in its custody, and it does

not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.” Id.

        Inasmuch as Dr. Place acted under the color of state law when he provided treatment to

McCarthy, this Court must determinate whether McCarthy created a genuine issue of material fact

with respect to his alleged Eighth Amendment violation. In Estelle v. Gamble, 429 U.S. 97 (1976),

the Supreme Court held that the Eighth Amendment requires the government “to provide medical

care for those whom it is punishing by incarceration” because the failure to do so “may actually

produce ‘physical torture or a lingering death’” or “[i]n less serious cases, . . . may result in pain and

suffering which no one suggests would serve any penological purpose.” Id. at 103. The failure to

provide such medical care may result in a violation of the Cruel and Unusual Punishments Clause

of the Eighth Amendment. Id.

        In Estelle, the Supreme Court held that:

                [D]eliberate indifference to serious medical needs of prisoners constitutes
                the unnecessary and wanton infliction of pain proscribed by the Eighth
                Amendment. This is true whether the indifference is manifested by prison
                doctors in their response to the prisoner’s needs or by prison guards in
                intentionally denying or delaying access to medical care or intentionally
                interfering with the treatment once prescribed.

Id. at 104 (internal citations omitted). The Court has noted, however, that the term deliberate

indifference “describes a state of mind more blameworthy than negligence.” Farmer v. Brennan,



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511 U.S. 825, 835 (1994). Indeed, “[m]edical malpractice does not become a constitutional violation

merely because the victim is a prisoner.” Estelle, 429 U.S. at 105. However, a litigant establishes

a cognizable Eighth Amendment violation where it can be shown that prison officials were

deliberately indifferent to the medical needs of prisoners, thus violating the evolving standards of

decency that undergird the Eighth Amendment. Farmer, 511 U.S. at 835.

       The failure to address a serious medical need rises to the level of a constitutional violation

where both objective and subjective requirements are met. See id. at 833. First, the failure to protect

from risk of harm must be objectively “sufficiently serious.” Id. To meet this requirement,

McCarthy must show “the existence of a sufficiently serious medical need.” Blackmore v.

Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004).               Second, to satisfy the subjective

requirement, McCarthy must show “a sufficiently culpable state of mind in delaying medical care.”

Id. This subjective requirement is met where a plaintiff demonstrates that prison officials acted with

“deliberate indifference” to a serious medical need. An official is deliberately indifferent where “the

official knows of and disregards an excessive risk to inmate health or safety; the official must both

be aware of the facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. However, “a plaintiff need

not show that the official acted ‘for the very purpose of causing harm or with knowledge that harm

will result.’” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (quoting Farmer, 511 U.S.

at 835). Put simply, “deliberate indifference to a substantial risk of serious harm to a prisoner is the

equivalent of recklessly disregarding that risk.” Farmer, 511 U.S. at 836.

       A serious medical need is “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the necessity for


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a doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). Dental needs have been

recognized as falling into the category of “serious medical needs” inasmuch as courts have observed

that “[d]ental care is one of the most important needs of inmates.” Ramos v. Lamm, 639 F.2d 559,

576 (10th Cir. 1980). Nevertheless, not all dental problems constitute serious medical needs.

Rather, “[a] cognizable claim regarding inadequate dental care, like one involving medical care, can

be based on various factors, such as the pain suffered by the plaintiff, the deterioration of the teeth

due to a lack of treatment, or the inability to engage in normal activities.” Chance v. Armstrong, 143

F.3d 698, 703 (2d Cir. 1998). McCarthy’s cavity and toothache were left untreated for more than

seven months. During this time, McCarthy was experiencing significant pain and discomfort, so

much so that he experienced difficulty eating solid foods on Thanksgiving and on other occasions.

Furthermore, both the Magistrate Judge and the District Judge found that McCarthy presented

sufficient evidence to create a genuine issue of material fact on this element and Dr. Place does not

dispute this finding on appeal. Because there is a genuine issue of material fact regarding

McCarthy’s serious medical condition, the court’s analysis turns to the issue of deliberate

indifference.

       As noted above, a defendant is deliberately indifferent where it can be shown that an official

disregarded a known risk of serious harm to inmate health or safety. Farmer, 511 U.S. at 837.

Where, as here, “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 that sound is state tort law.” Graham ex rel. Estate of Graham v. County

of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004). However, prison officials may not entirely

insulate themselves from liability under § 1983 simply by providing some measure of treatment.


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Indeed, deliberate indifference may be established in cases where it can be shown that a defendant

rendered “grossly inadequate care” or made a “decision to take an easier but less efficacious course

of treatment.” Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir.2002)

(quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)); see also Chance, 143 F.3d at

704.

        In Chance, the Second Circuit found that an allegation that dentists consciously failed to fill

an inmate’s cavity, thus causing significant pain, stated a claim of deliberate indifference in violation

of the Eighth Amendment. The plaintiff, proceeding pro se, alleged that prison dentists were

deliberately indifferent to his serious dental needs because they denied him adequate treatment for

“an overbite that made it difficult to chew or speak” and “a cavity that caused him ‘great pain.’” 143

F.3d at 700. The plaintiff alleged that the dentists recommended extractions of his teeth that second

opinions revealed were unnecessary and that the dentists had a financial incentive in recommending

extractions rather than less invasive treatments, such as fillings. The court held that such allegations

established deliberate indifference in violation of the Eighth Amendment inasmuch as the dentists

could be said to have recklessly disregarded the risk to plaintiff as a result of decision-making that

was not guided by “sound medical judgment.” Id. at 704. In other words, the dentists consciously

took a less efficacious route in treating Chance’s serious ailments. Id. at 703 (“In certain instances,

a physician may be deliberately indifferent if he or she consciously chooses ‘an easier and less

efficacious’ treatment plan.”).

        Before the district court, McCarthy alleged that Dr. Place was deliberately indifferent to his

serious medical needs as a result of the delay in pulling his teeth prior to filling his cavity and Dr.

Place’s failure to more effectively treat the pain caused by the cavity until a permanent filling could


                                                  -9-
be scheduled. In support of these allegations, McCarthy offered the affidavits of two CCI inmates.

One inmate, Russell Billiter, stated that, contrary to Dr. Place’s treatment plan, prison dentists pulled

more than one of his teeth at a time. (J.A. at 23.) Another inmate, Richard Carter, stated that when

he suffered from a painful cavity, instead of being given ibuprofen, “Dr. Place drilled all the decay

out and packed it with something he said was temporary and that he would put me on the ‘filling

list.’ Months later after finishing all [of] my teeth that hurt[,] he filled the tooth that he had drilled

out and packed.” (Appellant’s J.A. at Ex. 1.) In response, Dr. Place asserted that he did not remove

all of McCarthy’s teeth at once because the two teeth were on opposite sides of McCarthy’s mouth

and “[i]n such cases, only one extraction is done until completion so as to allow the patient to be able

to still chew while eating.” (J.A. at 36.) Further, Dr. Place submitted an affidavit defending his

treatment of McCarthy’s pain, stating that he “freely admit[ted] that for Plaintiff’s complaint of a

toothache, I provided ibuprofen to alleviate the pain in the maximum amounts permitted.” (J.A. at

27.)   Dr. Place, however, provided no explanation regarding his failure to temporarily fill

McCarthy’s cavity to minimize pain.

        The district court rejected McCarthy’s claim, suggesting that the affidavits of Billiter and

Carter were entitled to very little weight because “the dental records of these other inmates have not

been made part of the record” and “their affidavits do not indicate which teeth were extracted or

filled.” (J.A. at 48.) Therefore, the district court found that McCarthy did not present sufficient

evidence to establish a genuine issue of material fact regarding whether Dr. Place was deliberately

indifferent to McCarthy’s medical needs. This court finds, as discussed below, that while the district

court’s analysis was correct regarding the timeliness of McCarthy’s extractions, McCarthy did




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present sufficient evidence to create a genuine issue of material fact with respect to Dr. Place’s

treatment of the pain caused by his cavity.

       McCarthy argued that Dr. Place was deliberately indifferent to his dental needs based on the

slow pace at which his teeth were extracted, which caused him to suffer pain caused by the cavity

for more than seven months. Dr. Place asserted that the two teeth could not be removed

simultaneously because they were on opposite sides of the mouth.             Dr. Place’s assertion

demonstrates that he did not recklessly disregard the substantial pain that McCarthy was in when he

chose this course of action. Rather, Dr. Place considered the consequences of simultaneous

extraction and took another course. Thus, Billiter’s affidavit, indicating he had more than one

extraction on the same day without more, does not undermine Dr. Place’s assertions or establish a

dispute of material fact regarding the timeliness or adequacy of the extraction of McCarthy’s teeth.

       McCarthy, however, presented evidence that Dr. Place was deliberately indifferent to his

serious medical needs by showing that Dr. Place was aware of the significant pain McCarthy was

experiencing due to his cavity, yet he failed to relieve this pain for over seven months. McCarthy

demonstrated that Dr. Place could have prescribed a temporary filling inasmuch as he had done so

for other inmates, but instead chose a less efficacious treatment route by giving McCarthy packets

of ibuprofen. See Terrance, 286 F.3d at 843. Even if one credits Dr. Place’s assertion that

McCarthy was given the maximum amount of the pain reliever that was permitted under the ODRC

guidelines, which were not included as part of the record, a reasonable jury could find, based on

other evidence in the record, that Dr. Place disregarded a risk of serious harm when he failed to

temporarily fill McCarthy’s cavity despite the fact that he knew of the pain McCarthy was




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experiencing and that he was familiar with more effective treatment options. Thus, the district court

erred in granting summary judgment in favor of Dr. Place.

                                       IV. CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s judgment in favor of Dr.Place

and REMAND this case back to the district court for further proceedings in accordance with this

opinion.




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