                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 14-1680
                          ___________________________

                                  Marvin Allen Mead

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

  Director Charles Palmer, Director of the Iowa Department of Human Services

                              lllllllllllllllllllll Defendant

 Jason Smith, Superintendent of CCUSO Unit Cherokee Mental Health Institute;
  Mary Benson, Medical Nurse/Medical Tech of CCUSO Unit Cherokee Mental
                                Health Institute

                       lllllllllllllllllllll Defendants - Appellants

Brad Wittrock, Director of Security Operations; Bob Stout, Religious Coordinator/Chaplin

                              lllllllllllllllllllll Defendants
                                      ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                              Submitted: April 16, 2015
                                Filed: July 24, 2015
                                   ____________
Before BYE and SMITH, Circuit Judges, and SCHILTZ1, District Judge.
                              ____________

SMITH, Circuit Judge.

       In this interlocutory appeal, Director Jason Smith, M.D., and Nurse Mary
Benson, both of Iowa's Civil Commitment Unit for Sex Offenders (CCUSO)
(collectively, "defendants"),2 appeal the district court's order denying them qualified
immunity from damages in a 42 U.S.C. § 1983 suit brought by Marvin Mead, a
patient civilly committed at the CCUSO. Mead claimed that he was denied essential
dental care because the defendants required him to pay for partial dentures and were
deliberately indifferent to his serious medical need by denying him the dentures.

       After careful review of the record—and within the constraints of our appellate
jurisdiction in this interlocutory appeal—we conclude that the defendants are entitled
to qualified immunity from damages on Mead's claim regarding the denial of partial
dentures. See Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir. 2013) (de novo
review); Robbins v. Becker, 715 F.3d 691, 693 (8th Cir. 2013) (court has jurisdiction
to review denial of qualified immunity only to extent that denial turns on issue of
law). Accordingly, we reverse.

                                    I. Background



      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, sitting by designation.
      2
         Those defendants who are named in the caption, but are not designated as
appellants with Dr. Smith and Benson, were either dismissed for lack of personal
involvement or are named in a separate complaint consolidated with the complaint
that is the subject of this appeal.

                                         -2-
      Mead's amended § 1983 complaint alleged that the defendants "denied [him]
adequate dental care" by depriving him of "extensive dental care that he is unable to
afford" and were "deliberately indifferent to [his] need for dental care in violation of
his constitutional rights." He alleged that he had many teeth pulled while in custody,
was unable to chew food properly, suffered from acid reflux, and had become
diabetic. He sought injunctive relief and damages.

       The defendants moved for summary judgment arguing that Mead had sufficient
funds to pay for a partial denture plate and failed to demonstrate a serious medical
need because (1) he had not requested and did not want a soft diet, (2) he had not lost
weight, (3) he had complained of discomfort but not pain, (4) he had stated that he
was satisfied with his medical care, and (5) no dentist had concluded that Mead had
a serious medical need for dentures. The defendants argued that they were entitled to
qualified immunity, not personally responsible for Mead's alleged damages, and
immune from money damages. In an attached statement of facts, they alleged that
Mead had $1,300 in his account and that buying a partial plate would cost
approximately $1,200. The defendants' appendix included transcripts of the
depositions of Mead and dentist Timothy DeStigter; Mead's dental records; and
CCUSO documents, including Mead's account statement, nursing notes, and a
health-services request from Mead.

       The undisputed evidence shows the following. Mead testified that he suffered
cuts on the top of his gums from chewing food which caused "discomfort" but "not
really pain." Mead could not eat apples, eating steak was a "chore" for him, and
eating cold cereal cut his gums. He was on a normal diet and did not want a soft diet.
He had gained about ten pounds since admission to CCUSO, and he felt that he
consumed adequate calories. He ate "in a different way" and had to "adapt" how he
chewed. He was satisfied with his medical care.




                                          -3-
       Dr. Timothy DeStigter, Mead's treating dentist, testified that substantial recent
weight loss is symptomatic of serious medical need for dentures. According to Dr.
DeStigter, if he had seen cuts on Mead's gums or had believed that Mead had a
serious medical need for dentures, he would have made that notation in Mead's file;
his records did not include either notation. Nursing notes indicate that Mead had been
transported to Dr. DeStigter's office for a dental appointment in January 2012 after
complaining of a broken tooth. During the appointment, Mead asked if he was a
candidate for an upper partial plate, and Dr. DeStigter replied that Mead would need
to have another couple of teeth pulled, and then Dr. DeStigter "would recommend Pt.
Mead be fitted for an upper partial plate." Following this appointment, Mead wrote
in a health-services request that he needed a partial plate so that he could chew his
food properly. Benson responded that "we do not pay for dentures" and directed
Mead to take the issue to management. In September 2012, Mead had another dental
appointment, during which two teeth were pulled.

       In response to the defendants's summary-judgment motion, Mead argued that
he required partial dentures to repair damage to his teeth that occurred while he was
detained; without the dentures, he suffered discomfort and cuts on his gums; and
though he had saved $1,300 in a "restricted" account that could be used for medical
care, there was a $2,000 saving requirement for progressing towards release from
CCUSO. Mead also argued that he had to be selective about his diet due to his
diabetes, acid reflux, Hepatitis C, and high cholesterol and that the lack of teeth
limited food choice. The defendants replied, as relevant, that the new policy required
"demonstration of financial responsibility" and no longer required a specific amount
of savings.

       The district court denied summary judgment, concluding that Mead had
established a genuine issue of material fact on whether he had a serious medical need
for dentures in light of (1) his medical condition and inability to choose freely what
to eat and (2) the fact that his weight gain might be unhealthy rather than a sign of

                                          -4-
good health. The court also found that Mead had established a genuine issue on
whether the defendants were deliberately indifferent by refusing him partial dentures.
The court then concluded that the defendants were not entitled to qualified immunity
because they had admitted that they knew of their obligation to provide medical care
that was not deliberately indifferent. The court found that Dr. Smith and Benson were
appropriate defendants because Dr. Smith had developed the denture policy and
Benson had carried it out; according to the court, because they were being sued in
their individual capacities, they were not immune from money damages.

                                 II. Discussion
      On appeal, the defendants argue that they are entitled to qualified immunity
because Mead neither demonstrated serious medical need nor deliberate indifference.

       "We review de novo a denial of summary judgment on grounds of qualified
immunity." Stoner, 735 F.3d at 802 (quotation and citation omitted). We note that
"[t]he scope of our interlocutory review, however, is limited to the issue of qualified
immunity, and we may not consider summary judgment on the merits of the case at
this stage." Id. (citations omitted). "We may review a district court's order denying
qualified immunity to the extent that it turns on an issue of law." Robbins, 715 F.3d
at 693 (8th Cir. 2013) (quotations and citations omitted).

       In determining whether the defendants should receive qualified immunity, this
court evaluates

      (1) whether the facts alleged, construed in the light most favorable to
      [Mead], establish a violation of a constitutional or statutory right, and
      (2) whether that right was clearly established at the time of the alleged
      violation, such that a reasonable official would have known that her
      actions were unlawful.




                                         -5-
Keil v. Triveline, 661 F.3d 981, 985 (8th Cir. 2011) (citing Pearson v. Callahan, 555
U.S. 223, 232 (2009)). We may "exercise [our] sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be addressed first."
Pearson, 555 U.S. at 236.

       "[W]here a [civilly-committed] patient's Fourteenth Amendment claim is for
constitutionally deficient medical care, we apply the deliberate indifference standard
from the Eighth Amendment." Scott v. Benson, 742 F.3d 335, 339 (8th Cir. 2014)
(citing Senty–Haugen v. Goodno, 462 F.3d 876, 889–90 (8th Cir. 2006)); see also
Curtiss v. Benson, 583 F. App'x 598 (8th Cir. 2014) (per curiam) (same). To prove
deliberate indifference, Mead must show that (1) he suffered from objectively serious
medical needs, and (2) the defendants actually knew of, but deliberately disregarded,
those needs. See Fourte v. Faulkner Cnty., Ark., 746 F.3d 384, 387 (8th Cir. 2014).

       This court recently decided a substantially similar case involving the CCUSO
and defendant Benson. See Curtiss, 583 F. App'x at 598. In that case, a civilly-
committed patient "who has had no teeth since shortly after his 2008 admission to
CCUSO" filed suit against Benson and another nurse practitioner, "claim[ing] that he
was denied dentures in violation of his rights under the Fourteenth Amendment." Id.
(emphasis added) (citation omitted). The district court denied qualified immunity to
the nurse practitioners. Id. On appeal, we reversed, holding that the nurse
practitioners were "entitled to qualified immunity as to [the civilly-committed
patient's] claim for damages based on the denial of dentures." Id. We found "no
genuine issue of material fact on the question whether [the patient] can show a
violation of his clearly established constitutional rights, that is, that the defendants
were deliberately indifferent to a serious medical need" because no evidence existed
in the record

      suggesting that either defendant knew and ignored that Curtiss was in
      pain, much less severe pain, as a result of his lack of teeth. There also

                                          -6-
      is nothing in the record to suggest that either defendant had information
      from which she would have drawn the conclusion that because Curtiss
      had difficulty chewing certain foods without teeth, he was unable to
      obtain adequate nutrition, and Curtiss did not make this claim.

Id. at 598–99 (emphases added). As a result, we held that "a reasonable medical
professional in the position of [the nurse practitioners] would not have known that
denying [the civilly-committed patient's] request to be provided dentures would
violate his clearly established constitutional rights." Id. at 599 (citing Tolan v.
Cotton,__ U.S.__, 134 S. Ct. 1861, 1866 (2014) (per curiam) (explaining that the
"salient question" when determining whether rights are clearly established is whether
the law at the time of the challenged conduct provided "fair warning" that the conduct
was unconstitutional (quotation and citation omitted)); Stoner, 735 F.3d at 803 ("In
determining whether the legal right at issue is clearly established, this circuit applies
a flexible standard, requiring some, but not precise factual correspondence with
precedent, and demanding that officials apply general, well-developed legal
principles." (quotation and citation omitted)); Hartsfield v. Colburn, 491 F.3d 394,
397 (8th Cir. 2007) (collecting cases reversing summary judgment for prison officials
when those officials delayed providing dental care for inmates who showed signs of
serious infection and who complained of severe pain)).

       We see no discernable difference between this case and Curtiss and therefore
hold that the defendants are entitled to qualified immunity. Similar to Curtiss, the
undisputed facts show that (1) Mead had received regular dental examinations, and
dentures had never been prescribed as medically necessary; (2) he had gained weight
and received sufficient calories; (3) his discomfort did not rise to the level of pain;
(4) he was still able to eat; and (5) he did not want a soft diet, even though chewing
certain foods was a "chore," because he had learned to adapt. Mead's deposition
testimony reveals that his primary complaint is that he receives cuts on the tops of his
gums from chewing his food. He testified that these cuts cause discomfort: "You
know what, discomfort. Not really pain, but discomfort. You know it's there. It's not

                                          -7-
like it's a big pain or anything, but it's uncomfortable." He testified he has trouble
eating apples and that eating steak was a "chore." He also noted that eating cold
cereal like Captain Crunch is a problem. He is on a normal diet and has not requested
a soft diet that would be easier on his gums. He stated, "I have seen those diets. I
really don't want none of that." Mead weighed 220 pounds upon admission, and he
now weighs about 230—a modest weight gain. Mead agreed that he has not lost
weight due to difficulty chewing, testifying, "[Y]ou know, I'm still adamant about my
food. I still love to eat. I just do it in a different way now. You know, you adapt to
what you're working with, and I've been able to do that. Q: Do you feel like you're
able to get adequate calories? A: Yeah." Mead also had a physical in October 2012,
and he did not complain about problems with his mouth at the physical. Given these
undisputed facts, we hold that Mead failed to prove that the defendants were
deliberately indifferent to a serious medical need; as a result, the defendants are
entitled to qualified immunity.

       "We note that the doctrine of qualified immunity does not apply to [Mead's]
claim[] for . . . injunctive relief." Curtiss, 583 F. App'x at 599 (citing Burnham v.
Ianni, 119 F.3d 668, 673 n.7 (8th Cir. 1997) (en banc) (explaining that an appeal from
the denial of qualified immunity implicated only liability for money damages and that
qualified immunity would not protect the defendant from claims for injunctive or
other equitable relief); Grantham v. Trickey, 21 F.3d 289, 295 (8th Cir. 1994) (stating
that "qualified immunity does not apply to claims for equitable relief")).

                                  III. Conclusion
       Accordingly, we reverse the district court's decision denying the defendants
qualified immunity from damages on the instant dental claim, and we remand the case
for further proceedings consistent with this opinion.




                                         -8-
BYE, Circuit Judge, dissenting.

      I disagree this Court should exercise jurisdiction to reverse the district court
and find Smith and Benson ("the officials") entitled to qualified immunity.

      A denial of a summary judgment on the issue of qualified immunity is
immediately appealable only to the "extent that it turns on an issue of law." Brown
v. Fortner, 518 F.3d 552, 557 (8th Cir. 2008). This is not a case where we may
resolve the question of qualified immunity as a matter of law. See Prosser v. Ross,
70 F.3d 1005 (8th Cir. 1995); Crow v. Montgomery, 403 F.3d 598, 604 (8th Cir.
2005) (Smith, J., dissenting).

       The officials argue factual disputes on appeal, and the Court makes factual
inferences in favor of the officials. The Court focuses on five undisputed facts which
it believes require a finding that the officials were not deliberately indifferent to a
serious medical need. These facts do not support this Court exercising jurisdiction
and reversing the district court. For example, the Court finds relevant that Mead had
gained weight. Although weight gain could support a finding the officials were not
deliberately indifferent—because if Mead were gaining weight, then Mead was
consuming sufficient calories—the weight gain could also support a finding the
officials were deliberately indifferent. Mead not only has trouble chewing his food
and suffered cuts, he also has diabetes, acid reflux, Hepatitis C, and high cholesterol.
For these reasons, Mead's weight gain could easily be attributable to inadequate
nutrition because the officials failed to provide Mead dentures. Similarly, the Court
finds relevant Mead's statement he did not want a soft diet. Although this refusal
could support a finding the officials were not deliberately indifferent—because any
pain was insufficient to convince Mead to change his diet—Mead's interest in
avoiding a soft diet could be related to his nutritional needs based on his other health
issues.



                                          -9-
       I believe the district court was correct in its determination that material factual
disputes exist regarding the officials' knowledge and conduct. Despite the officials
arguing factual issues on appeal,3 the Court finds jurisdiction exists and holds "Mead
failed to prove that the defendants were deliberately indifferent to a serious medical
need." For this proposition, the Court relies on Curtiss v. Benson, 583 F. App'x 598
(8th Cir. 2014) (per curiam).

       The reliance on Curtiss is misplaced. In Curtiss, the Eighth Circuit found the
defendants did not know the plaintiff was in any pain or unable to obtain adequate
nutrition. Id. at 598-99. This case is different: Mead reported discomfort from
chewing as well as associated problems, such as acid reflux and cuts to his gums. As
discussed above, Mead has put forth evidence which could support a finding he was
unable to obtain adequate nutrition and the officials were deliberately indifferent in
failing to accommodate his nutritional needs as a diabetic by failing to provide him
with dentures. The law is clearly established that officials can act with deliberate
indifference to an inmate's serious medical need for dentures. See Campbell v.
Dunham, No. 07-00567, 2010 WL 7361158 at *4-5 (S.D. Iowa Oct. 27, 2010)
(surveying case law on dentures in deliberate indifference cases). Because it is

      3
        I have identified at least four factual disputes raised by the officials in their
briefs. First, the parties contest whether Mead's lack of upper teeth had caused cuts
to the gums. The officials acknowledge discomfort exists, but dispute whether there
are any cuts. Second, the parties contest the reasonableness of requiring Mead to pay
for his dentures. The officials argue no certain amount of savings are needed while
Mead testified there was, at the time of his denture denial, a requirement of having
$2000 in an account before release and he did not know if he would be punished
under the new fiscal responsibility requirement. Third, the parties contest whether
Mead has special dietary needs which would tend to support him needing dentures.
The officials assert there is no medical evidence that Mead requires any particular
type of special diet. Mead alleges he has special dietary needs because he has
diabetes and Hepatitis C. Finally, the parties contest whether the officials were
responsible for the denial of Mead's dentures. The officials argue they did not make
the denture decision; Mead argues the officials created and enforced the denture rule.

                                          -10-
clearly established dental needs may be recognized as a serious medical need in
support of § 1983 deliberate indifference claims, Boyd v. Knox, 47 F.3d 966, 969
(8th Cir. 1995), and because factual disputes exist about the seriousness of Mead's
dental needs and whether the officials were deliberately indifferent, I do not believe
this Court can find, as a matter of law, Mead has failed to show deliberate
indifference.

      Accordingly, I would dismiss this case for lack of jurisdiction.
                      ______________________________




                                        -11-
