                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-2454
                                     ___________

Napoleon Hartsfield,                      *
                                          *
      Plaintiff - Appellant,              *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Nurse Janice Colburn, et al.,             *
                                          *
      Defendants - Appellees.             *
                                     ___________

                                Submitted: January 11, 2007
                                   Filed: July 19, 2007
                                    ___________

Before LOKEN, Chief Judge, BYE and SHEPHERD, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Iowa inmate Napoleon Hartsfield alleged in his 42 U.S.C. § 1983 complaint that
five defendants were deliberately indifferent to his serious medical needs when they
delayed referring him to an oral surgeon to have three teeth extracted while he was a
pretrial detainee at the Scott County Jail. In a prior appeal, we reversed the grant of
summary judgment in favor of four defendants and remanded for further proceedings.
Hartsfield v. Colburn, 371 F.3d 454 (8th Cir. 2004).
        On remand, the magistrate judge1 conducted an evidentiary hearing. See 28
U.S.C. § 636(b)(1)(B). During the hearing, one defendant was voluntarily dismissed.
The remaining defendants are Nurse Janice Colburn, a full-time employee at the Jail,
Dr. Scott Ludwig, a private physician hired to provide medical services at the Jail, and
Captain Michael McGregor, who was responsible for transporting inmates to medical
appointments. Following the hearing, the magistrate judge filed a Report and
Recommendation that judgment be entered in favor of these three defendants. The
district court2 reviewed de novo the portions of the Report to which Hartsfield
objected and adopted it in full. See 28 U.S.C. § 636(b)(1). Hartsfield appeals. When
an inmate challenges the conditions of his confinement and the evidence is gathered
in this fashion, the hearing before the magistrate judge is the equivalent of a bench
trial, and we review the district court’s findings of fact for clear error. See Choate v.
Lockhart, 7 F.3d 1370, 1373 n.1 (8th Cir. 1993); Moody v. Proctor, 986 F.2d 239, 241
(8th Cir. 1993). We affirm.

       Hartsfield entered the Scott County Jail on October 4, 2001. Jail policy
required inmates to submit sick call requests to receive medical treatment. On
October 20, Hartsfield submitted a sick call request reciting, “Tooth need[s] pulling
it hurts like mad and I’m in se[vere] pain.” Dr. Ludwig reviewed the request and
prescribed ibuprofen, a pain-relieving medication. Dr. Ludwig testified that, because
he is not a dentist, his standard response to non-emergency requests for dental care is
to prescribe a pain reliever without examining the inmate and then to make an
appointment for the inmate to see a dentist if the pain medication is not effective. The
district court found that, after October 20, Hartsfield was allowed to purchase
ibuprofen from the jail commissary whenever he requested.


      1
        The HONORABLE CELESTE F. BREMER, United State Magistrate Judge
for the Southern District of Iowa.
      2
       The HONORABLE JAMES E. GRITZNER, United States District Judge for
the Southern District of Iowa.

                                          -2-
       In the following weeks, Nurse Colburn acknowledged that Hartsfield made
“constant” complaints about continuing tooth pain, headaches, and problems eating
and sleeping, and he regularly asked to see Dr. Ludwig. Colburn responded by
instructing Hartsfield to submit another sick call request. She also reported his
complaints to Dr. Ludwig “at least once a week.” Hartsfield testified that he also
complained directly to Dr. Ludwig when they met by chance in a hallway. Ludwig,
too, told Hartsfield to file another sick call request if he needed further medical
attention. Ludwig did not recall this encounter.

       On November 27, Hartsfield filed a second sick call request that stated, “I’ve
put in slips to get my teeth pulled once in Oct. 2001 now I will file a lawsuit cause I’m
in pain and can’t get medical treatment.” Colburn and Ludwig promptly scheduled
an appointment and on December 5 Hartsfield was seen by Dr. David Anderson, a
private oral surgeon who treats patients referred by the Jail. An x-ray of Hartsfield’s
mouth revealed long-standing decay in two molars causing an exposed root and
inflammation around an adjacent impacted wisdom tooth. With Hartsfield’s consent,
Anderson extracted the three teeth in a five-to-ten-minute procedure, using only local
anesthetic. Hartsfield required no further dental treatment. This lawsuit concerns
only the delay in scheduling the dental appointment with Dr. Anderson.

       Deliberate indifference to an inmate’s serious medical needs violates the Eighth
Amendment as applied to the States by the Fourteenth Amendment. Hartsfield was
a pretrial detainee at the time in question, but it is now settled “that deliberate
indifference is the appropriate standard of culpability for all claims that prison
officials failed to provide pretrial detainees with adequate food, clothing, shelter,
medical care, and reasonable safety.” Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir.
2006), cert. denied, 127 S. Ct. 2128 (2007).

     “To prevail on an Eighth Amendment claim of deliberate indifference to serious
medical needs, an inmate must prove that he suffered from one or more objectively

                                          -3-
serious medical needs, and that prison officials actually knew of but deliberately
disregarded those needs.” Roberson v. Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999).
Deliberate indifference is equivalent to the criminal law standard of recklessness -- “a
prison official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”
Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004), quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994). Each step of this inquiry is fact-intensive. We review the
district court’s factual conclusions for clear error. Jensen v. Clarke, 94 F.3d 1191,
1197-98 (8th Cir. 1996).

       Toothaches can be excruciatingly painful, and dental care is an important part
of proper health care. Thus, a number of our decisions have reversed the grant of
summary judgment in favor of prison officials and prison dentists who delayed three
weeks or more in providing dental care for an inmate whose mouth showed obvious
signs of serious infection, such as swelling, bleeding, or pus, and who complained of
severe tooth pain. See Moore v. Jackson, 123 F.3d 1082, 1085-87 (8th Cir. 1997);
Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995); Patterson v. Pearson, 19 F.3d 439,
440 (8th Cir. 1994); Fields v. Gander, 734 F.2d 1313, 1315 (8th Cir. 1984).
Consistent with these decisions, we reversed the prior grant of summary judgment in
this case because Hartsfield presented evidence “that he suffered extreme pain from
loose and infected teeth, which caused blood to seep from his gums, swelling, and
difficulty sleeping and eating,” and some evidence that defendants may have delayed
referring him to Dr. Anderson for non-medical reasons -- Hartsfield’s prior
misconduct or security issues in seeking care outside the Jail. 371 F.3d at 457.

       These issues were thoroughly explored at the evidentiary hearing. The district
court found that Nurse Colburn “did not see, or otherwise know, that Hartsfield had
bleeding or swelling,” a finding supported not only by Colburn’s testimony, but also
by Dr. Anderson’s description of Hartsfield’s condition at the time of the December
5 surgery. Therefore, the court found, Colburn did not have actual knowledge of a

                                          -4-
serious medical need. In addition, Colburn responded reasonably to Hartsfield’s
continuing complaints of pain and discomfort by reporting those complaints to Dr.
Ludwig,3 and her instruction to Hartsfield to submit a second sick call request when
he continued complaining after October 20 was consistent with procedures set forth
in the Scott County inmate manual. Although the question of Hartsfield’s serious
medical need is not an issue on appeal, the following testimony by Dr. Anderson, the
only dentist who testified, is relevant to these deliberate indifference issues:

            Q [by Hartsfield’s attorney]. And you would agree that Mr.
      Hartsfield had a serious medical condition; correct? Or a serious dental
      medical condition?

            A. Well, I don’t know that I agree that it is serious. . . . He didn’t
      have an acute swelling, he didn’t have an area that needed to be drained,
      he didn’t come in unable to open his mouth . . . . I don’t know that
      having a tooth extracted is a -- you know, a serious problem. It’s done
      as an outpatient, it’s done with local anesthesia, and it’s done with
      hopefully minimal discomfort . . . .

In dental care cases where we reversed the grant of summary judgment, the record
contained evidence that prison officials knew the inmate suffered from one or more
of the serious conditions described by Dr. Anderson, as did the summary judgment
record in this case. But the evidence introduced at trial failed to persuade the fact-
finder that these allegations were credible.

      Again supported by Dr. Anderson’s testimony, the district court further found
that Dr. Ludwig followed his standard protocol and acted in accordance with
recognized medical standards of care in prescribing ibuprofen and waiting to see if
that medication would resolve the problem before referring Hartsfield to a dentist.


      3
       There is no evidence that Nurse Colburn could have unilaterally referred
Hartsfield to a dentist if she and Dr. Ludwig disagreed about the need for referral.

                                          -5-
The Court credited Ludwig’s testimony that this was strictly a medical judgment, that
Hartsfield’s treatment was not based “on security or financial concerns, or anything
other than the recognized standards of medical care.” As Dr. Ludwig saw no
complaint of bleeding or swelling on the sick call requests, and received no report of
visible bleeding or swelling from Nurse Colburn, the court found that Ludwig’s
decision not to personally examine Hartsfield was not deliberate indifference. Thus,
the court found, “there was no deliberate indifference for failing to schedule an
appointment with the dentist without first trying the ibuprofen.”

        On appeal, Hartsfield argues that, in response to his initial sick call request, Dr.
Ludwig prescribed a two-step course of treatment -- ibuprofen followed by referral to
a dentist. Therefore, when his continuing complaints demonstrated that ibuprofen was
not solving the problem, defendants were guilty of deliberate indifference in requiring
him to submit a second sick call request before referring him to a dentist. The district
court found that Colburn and Ludwig acted reasonably in requiring a second sick call
request and that most of the delay resulted when Hartsfield unreasonably failed or
refused to submit one. These findings are not clearly erroneous. Dr. Anderson
testified that pain caused by decayed molars and long-impacted wisdom teeth is
unpredictable. “Sometimes they can cause a lot of discomfort, a lot of pain, and then
it goes away and it may be quiescent for a while.” Sick call requests were Jail policy,
and it was not unreasonable for medical staff to tell Hartsfield how to request more
medical attention and expect him to comply.

      Finally, the district court found that if the treatment delay was caused in part by
Colburn and Ludwig not adequately communicating their response to Hartsfield’s
October 20 sick call request, this is evidence of negligence that does not rise to
unconstitutional deliberate indifference. We agree. It is undisputed that Dr. Ludwig
followed his standard protocol by immediately scheduling an appointment with Dr.
Anderson when Hartsfield submitted a second sick call request. Whether Ludwig
should have acted sooner, instead of waiting for Hartsfield to submit that request, is

                                            -6-
at most a question of negligence. As we said in Logan v. Clarke, 119 F.3d 647, 650
(8th Cir. 1997), “[a]lthough the prison doctors may not have proceeded from their
initial diagnosis to their referral to a specialist as quickly as hindsight perhaps allows
us to think they should have, their actions were not deliberately indifferent.” See also
Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir. 1998) (some delay in treating an
inmate’s broken hand, even if negligent, did not amount to deliberate indifference).

      The third defendant, Captain McGregor, testified that his role was limited to
arranging secure transportation for Hartsfield’s December 5 appointment with Dr.
Anderson after the medical staff scheduled that appointment. The district court found
that McGregor did not deny or delay Hartsfield’s dental treatment by interfering with
or overriding any medical staff decisions to schedule an earlier appointment. On
appeal, Hartsfield broadly contends that “defendants” were deliberately indifferent but
develops no argument specific to Captain McGregor. In any event, the district court’s
findings regarding Captain McGregor are not clearly erroneous.

      The judgment of the district court is affirmed.

BYE, Circuit Judge, concurring in part and dissenting in part.

       I agree the district court's findings regarding Captain Michael McGregor were
not clearly erroneous and join the Court in affirming the judgment entered in his
favor. I disagree Nurse Janice Colburn and Dr. Scott Ludwig should be excused for
their deliberate indifference to the undisputed serious medical needs of Napoleon
Hartsfield and, therefore, respectfully dissent from the portion of the Court's opinion
affirming the judgment entered in their favor.




                                           -7-
                                           I

       Mr. Hartsfield was required to prove two things to prevail on his Eighth
Amendment claim: 1) he had an objectively serious medical need; and 2) prison
officials knew of the need but deliberately disregarded it. Gordon ex rel. Gordon v.
Frank, 454 F.3d 858, 862 (8th Cir. 2006). With respect to the first item, Nurse
Colburn and Dr. Ludwig concede he had an objectively serious medical need.
Appellees’ Br. 15. When he was finally examined by a dentist, he had a significant
amount of decay on two molars. The decay had exposed a nerve, and there was some
bone loss around the decayed teeth. He also had an impacted wisdom tooth. The
dentist had to extract both of the decayed molars, as well as the impacted wisdom
tooth. Because Nurse Colburn and Dr. Ludwig did not dispute the seriousness of the
medical condition, the only issue left for the district court's resolution was whether
the prison officials knew of the need but nevertheless deliberately disregarded it.

      The Court's decision hinges in large part on the district court's finding that
Nurse Colburn "did not see, or otherwise know, that Hartsfield had bleeding or
swelling." Based on this fact-finding, the Court distinguishes this case from our prior
decisions where the inmate or prisoner not only complained of severe tooth pain, but
prison officials also observed obvious signs of serious infection such as swelling,
bleeding or pus. See Moore v. Jackson, 123 F.3d 1082, 1085-87 (8th Cir. 1997);
Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995); Patterson v. Pearson, 19 F.3d 439,
440 (8th Cir. 1994); Fields v. Gander, 734 F.2d 1313, 1315 (8th Cir. 1984). In other
words, deliberate indifference is present when prison officials not only have
knowledge of an inmate's complaints of severe tooth pain, but also observe swelling,
bleeding, or pus. Because Nurse Colburn "did not see, or otherwise know, that
Hartsfield has bleeding or swelling," the Court concludes the seven-week delay in his
medical treatment amounted to "at most a question of negligence." Ante at 7.




                                         -8-
      The fact that Nurse Colburn did not observe Mr. Hartsfield's bleeding and
swelling is hardly surprising, however, given her admission at the evidentiary hearing
she never examined the patient:

      Q.     From the time that Mr. Hartsfield filed his first complaint or –
             sorry – his first sick call request on October 20th of '01, through
             the time of his surgery on December 5th, did you ever personally
             examine Napoleon Hartsfield?

      A.     No, I did not.

Hr'g Tr. at 51, lines 3-7.

       Furthermore, it is undisputed Dr. Ludwig never examined Hartsfield at any time
between October 20 and December 5. Thus, this case is distinguishable from Moore,
Boyd, Patterson, and Fields, only in that the deliberate indifference exceeds that
present in those four cases. Prison officials were at least responsive enough to the
medical needs of inmates Moore, Boyd, Patterson, and Fields to take the most basic
step of examining them to determine the severity of their condition.

       Nurse Colburn and Dr. Ludwig acted pursuant to a policy of non-examination
for dental complaints. The prison's admitted policy was to prescribe ibuprofen for
dental patients, wait a short period to see if the pain would recede, and if it did not,
refer the inmate to a dentist. Having implemented a policy of non-examination, it is
incongruous for our court to excuse the delay in Mr. Hartsfield's dental treatment on
the ground the prison officials were unaware of the severity of his condition. Under
the Court's approach, prison officials can deliberately adopt a policy which shields
them from knowledge, and then deny responsibility because they lacked knowledge.
This is not mere negligence, but the epitome of deliberate indifference.




                                          -9-
       Under the facts involved in this case, the district court's finding that Nurse
Colburn "did not see, or otherwise know, that Hartsfield had bleeding or swelling" is
irrelevant. Pursuant to their adopted policy, Nurse Colburn and Dr. Ludwig should
have referred him to a dentist as soon as they knew the ibuprofen was not working.
The undisputed evidence shows both Nurse Colburn and Dr. Ludwig knew the
ibuprofen was not working and yet still delayed his dental treatment for weeks.

        Hartsfield testified he told Nurse Colburn about his tooth pain "[a]lmost every
day when she did her rounds[.]" Hr'g Tr. at 17, line 19. "I told her that I had severe
pain in my mouth, I couldn't eat, sleep, that I was having headaches[.]" Id. at 17, lines
10-11. He testified Nurse Colburn responded by telling him to "quit complaining and
bitching and that she would, you know, see me." Id. at 17, lines 12-13. He also
testified Nurse Colburn told him complaining and "threatening to file lawsuits is not
going to get me seen no quicker (sic). So I figured she was gonna, you know, talk to
someone and let me see the doctor or take me to get medical treatment." Id. at 30,
lines 7-11.

       Nurse Colburn's testimony did not contradict Hartsfield's. She testified: "After
the initial sick call slip, I did make rounds every day and did go to the cell that he
[Hartsfield] was in, and it was a constant verbal request, constant verbal request, and
he was told to put a sick call slip in." Id. at 47, lines 11-13. She also testified she
reported on his condition to Dr. Ludwig "on average at least once a week." Id. at 52,
line 10. Thus, the record is undisputed that both Nurse Colburn and Dr. Ludwig knew
the ibuprofen was not working, and yet still failed to examine Mr. Hartsfield to
determine the severity of his condition, or refer him to a dentist to address his serious
medical need.

       The only reason given by Dr. Ludwig and Nurse Colburn for delaying treatment
for Mr. Hartsfield's serious medical condition is his failure to complete a second sick
call slip. The insistence on a second sick call slip was unreasonable. Under the

                                          -10-
adopted policy, Nurse Colburn and Dr. Ludwig admit they prescribed a two-part
course of treatment with respect to his first sick call slip – ibuprofen first, followed
by a referral to a dentist if the ibuprofen did not work. Nurse Colburn and Dr. Ludwig
failed to follow through with the second part of the prescribed course of treatment
after they knew the ibuprofen did not work. The law does not impose upon Mr.
Hartsfield the burden of giving prison officials written notice of his serious medical
need; he must only prove prison officials knew of his need and deliberately
disregarded it. Indeed, our cases suggest the indifference is heightened when an
inmate communicates his distress directly, as he did, and prison officials fail to
respond. Cf. Gordon, 454 F.3d at 863 ("A reasonable officer would know that it is
unlawful for officers to delay medical treatment for an inmate with obvious signs of
medical distress, especially one who communicates this distress directly to officers.").

       Even assuming arguendo prison policy required Mr. Hartsfield to complete a
second sick call slip, the inmate's medical needs should take precedence when there
is tension between those needs and a prison's alleged need to adhere strictly to prison
policy. See De'Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003) (reversing
summary judgment where the refusal to provide medical treatment was based "solely"
on a policy rather than on a medical judgment concerning the plaintiff’s
circumstances).

                                           II

       Nurse Colburn and Dr. Ludwig did not see their patient's serious medical need
because they would not examine him. In addition, they ask us to pretend they did not
hear his complaints because he would not complete a second written form. Because
this shows Nurse Colburn and Dr. Ludwig deliberately disregarded Mr. Hartsfield's
serious medical needs, I respectfully dissent.
                       ______________________________



                                         -11-
