                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JULY 16, 2009
                               No. 08-15513                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 06-00949-CV-J-25-HTS

DONALD P. SANDS, JR.,


                                                             Plaintiff-Appellant,

                                    versus

JERRY H. CHEESMAN,
D.M.D.,

                                                           Defendant-Appellee.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                (July 16, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Donald Sands Jr., a Florida prisoner, appeals pro se the summary judgment
in favor of Dr. Jerry Cheesman and against Sands’s complaint that Cheesman

violated his civil rights under the First and Eighth Amendments. 42 U.S.C. § 1983.

The district court ruled that Sands failed to establish that Cheesman was

deliberately indifferent to Sands’s dental condition, used excessive force during an

examination, or retaliated against Sands after he filed a grievance against

Cheesman. We affirm.

                                I. BACKGROUND

      Sands was examined on November 25, 2003, by Cheesman, the dentist for

the Columbia Correctional Institution. Sands complained that his gums had been

inflamed and three of his teeth felt loose, but those problems had since desisted.

Cheesman observed that Sands had periodontal disease and advised Sands to

submit an inmate request for a comprehensive dental examination. Cheesman also

instructed Sands to request an examination by sick call if he experienced any

problems before the comprehensive examination. On December 1, 2003, Sands

submitted an inmate request for a comprehensive examination. Five days later,

Sands received a notice that stated he had been placed on a waiting list and would

receive an appointment in eight to ten months.

      In April 2004, Sands submitted a medical grievance form and complained

about the wait required to receive a comprehensive examination. Sands requested



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immediate dental care because he had been diagnosed in 1999 with periodontitis

and had problems related to that condition. Cheesman responded that Sands would

receive treatment when his name was reached on the waiting list.

      On June 23, 2004, Sands submitted an inmate sick call form that stated he

had “severe and at times acute persistent pain” in three teeth and bleeding of his

gums. The same day, Cheesman examined Sands. According to Sands, Cheesman

“scowled at [Sands] in a hostile and mallicious [sic] manner indicating that he had

recognized [Sands] as the inmate who had filed the formal medical grievance[.]”

Cheesman asked Sands “in a callous, hostile tone” what his problem was “this

time,” and when Sands began to list his complaints, Cheesman interrupted to

explain that he could treat only one complaint per sick visit, and Sands requested

Cheesman examine his front tooth. According to Sands, Cheesman felt his gums

and recognized that Sands had a “serious dental health condition”; proceeded to

“violently yank[]” on Sands’s tooth that caused Sands to cry out; and, while

measuring Sands’s gums, Cheesman tore gum tissue with a hooked dental

instrument. Cheesman accused Sands of trying to circumvent the waiting list;

warned Sands that he had 50 percent bone loss and severe periodontitis that would

continue to deteriorate because of his dental hygene; and told Sands that he would

receive treatment at his comprehensive examination.



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      On June 28, 2004, Sands filed a medical grievance against Cheesman.

Sands alleged in the grievance that he had a fever, the gums in the back of his

mouth were swollen, discolored, and tender, there was a lump and discoloration in

the gums between his front teeth, he had periodontal abscesses, and his teeth were

loose. Cheesman responded that Sands’s “persistance [sic] in wanting more than

one area attended pushed my patience requiring a more stern attitude” and Sands

would receive treatment during his comprehensive examination. In June and

August, Sands filed three additional medical grievances against Cheesman.

      In September 2004, Sands submitted an inmate sick call form in which he

complained that the lump between his front teeth had grown and turned purple.

That same day, Cheesman examined Sands and diagnosed him with a periodontal

abscess. Cheesman prescribed a painkiller and amoxicillin.

      In November, Sands received a comprehensive dental examination by

Cheesman. According to Sands, Cheesman did not hurt him even though

Cheesman used the same instruments and procedures employed during the June

examination. Nearly two years elapsed.

      In October 2006, Sands filed a complaint in the district court against

Cheesman and argued that Cheesman had been deliberately indifferent to Sands’s

medical needs; used excessive physical force and inflicted pain on Sands during



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the June examination; and retaliated against Sands for filing prison grievances.

Sands alleged that, if Cheesman had conducted a thorough examination in June

2004, Cheesman could have discovered that Sands’s front gums were diseased and,

because Cheesman waited until the gums became abscessed, the delay caused two

of Sands’s front teeth to protrude. Sands also alleged that Cheesman inflicted

unnecessary pain during the dental examination in June to retaliate for the

grievances that Sands had filed against Cheesman.

      Cheesman moved for summary judgment. Cheesman argued that Sands

failed to establish that he required immediate dental treatment in June 2004 or the

delay in treatment caused him harm. Cheesman explained that the dental

examination in June was medically necessary; he did not pull Sands’s tooth or use

a hooked instrument to probe Sands’s gums; and he did not intend to cause Sands

pain, nor did Sands act as though the examination was painful. Cheesman also

argued that Sands could not establish he should have received different treatment

because another dentist later recommended the same treatment.

      Cheesman attached to his motion two affidavits and Sands’s dental records.

In one affidavit, Thomas E. Shields, the director of dental services for the

Department of Corrections of Florida, stated that Sands’s dental records

established he had a history of severe periodontitis. Shields opined that Cheesman



                                           5
provided adequate dental care because Sands had failed to request routine dental

care both before and after he developed the periodontitis that caused bone loss and,

at the June examination, Cheesman could not have impeded the ongoing

deterioration. Shields mentioned that Sands never returned to Cheesman or the

dental department to report his pain. Shields stated that Cheesman would have

used the blunt end of a standard dental instrument to examine the health of Sands’s

gums.

        In a second affidavit, Cheesman stated that he did not observe any decay or

abscess when he examined Sands teeth in June. The examination required that

Cheesman manipulate Sands’s tooth and measure Sands’s gums, and Sands did not

complain of any pain. According to Cheesman, Sands “became belligerent and

demanded that he receive comprehensive periodontal treatment that same day[,]” to

which Cheesman responded that Sands did not have an emergency condition that

would to allow him to circumvent the waiting list. In September, Cheesman

treated Sands’s abscess and explained to Sands that his periodontitis with bone loss

would eventually cause him to lose teeth. When Sands returned for an examination

in January 2005, Cheesman recommended that Sands undergo a regimen of

treatment that would require the extraction of three teeth, but Sands later refused

the treatment. Sands’s dental records established that another dentist who



                                           6
examined Sands at another prison facility recommended the same course of

treatment, and Sands again refused treatment. Cheesman also stated that he

answered one or two grievances per week, and he understood that prisoners had a

right to file grievances and that responding to those grievances was a routine and

accepted practice for dentists who serve inmates.

      Sands filed a response to Cheesman’s motion to which he attached an

affidavit and copies of the Health Services Inmate Orientation Handbook. The

handbook stated that dental care consisted of emergency services, such as

abscesses, urgent non-emergency services treated during sick call, and regular

comprehensive care. The book also stated that “Dental clinic personnel will

provide you with dental care within Department of Corrections standards and as

time permits. The dentist will determine dental priorities. The most serious

problems have priority.”

      The district court granted summary judgment in favor of Cheesman. The

district court ruled that Cheesman was not deliberately indifferent to Sands’s

medical needs. The court found that Sands had “serious medical needs,” but that

Sands’s dental condition was not caused by the allegedly deficient examination in

June; Cheesman’s treatment could not have arrested the disease or bone loss; and

Sands’s dissatisfaction was a “claim of medical malpractice” that did “not amount



                                          7
to a constitutional violation.” The district court ruled that Sands received treatment

immediately after discovery of the abscess and Sands later received a

comprehensive examination. The district court also ruled that Cheesman had not

used excessive force and had employed standard practices and equipment during

the examination in June, and that neither the use of a periodontal probe or

Cheesman’s impatient or stern demeanor amounted to cruel and unusual

punishment. The district court ruled that Cheesman had not retaliated against

Sands for exercising his right to file a grievance. Sands was placed on the waiting

list months before he filed a grievance and all inmates faced a standard delay to

obtain a comprehensive examination. Cheesman provided Sands routine dental

care.

                          II. STANDARD OF REVIEW

        We review de novo a summary judgment. Burton v. Tampa Hous. Auth.,

271 F.3d 1274, 1276 (11th Cir. 2001). We construe liberally pro se pleadings,

Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), accept allegations in the

complaint as true, and draw all reasonable inferences in favor of the plaintiff.

Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). Summary judgment

should be entered when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).



                                           8
                                 III. DISCUSSION

      Sands presents three arguments on appeal. First, Sands argues that

Cheesman acted with deliberate indifference when he failed to treat the abscess in

Sands’s mouth during his sick examination in June. Second, Sands argues that

Cheesman used excessive force during that examination. Third, Sands argues that

Sands delayed treatment of the abscess and mistreated him during the examination

to retaliate for Sands’s grievance about the delay for comprehensive care and for

his sick visits. These arguments fail.

      There is no evidence that Cheesman acted with deliberate indifference to

Sands’s dental needs. Sands was required to prove he had an objectively serious

dental need of which Cheesman was subjectively aware and disregarded that need

based on “‘conduct that is more than mere negligence.’” Farrow v. West, 320 F.3d

1235, 1245 (11th Cir. 2003) (quoting McElligott v. Foley, 182 F.3d 1248, 1255

(11th Cir. 1999)). Cheesman examined Sands’s teeth and gums during the

examination in June and found no infection or abscess but, because of Sands’s

history of severe periodontitis, Cheesman warned Sands to expect his gums and

teeth to continue to deteriorate. Although Cheesman expected Sands’s condition to

worsen, there is no evidence that Cheesman should have anticipated that Sands

would develop an abscess and provided preventative care. Cheesman advised



                                         9
Sands that he could return for a sick visit, but Sands failed to avail himself of that

service for three months. Not “every claim by a prisoner that he has not received

adequate medical treatment states a violation of the Eighth Amendment.” Estelle

v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285, 291 (1976).

      There also is no evidence that Cheesman used excessive physical force when

he examined Sands during a sick visit in June. Not “every malevolent touch . . .

gives rise to a federal cause of action. The Eighth Amendment’s prohibition of

cruel and unusual punishments necessarily excludes from constitutional

recognition de minimis uses of physical force, provided that the use of force is not

of a sort repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S.

1, 9 –10, 112 S. Ct. 995, 1000 (1992) (quoting Whitley v. Albers, 475 U.S. 312,

327, 106 S. Ct. 1078, 1088 (1986) (internal quotation marks and citation omitted)).

Cheesman examined Sands briefly using standard procedures and instruments to

address Sands’s complaints about swollen gums and a loose tooth. Although

Sands complained of excruciating pain, he did not request from Cheesman or the

medical staff any pain medication.

      Sands also failed to present evidence that Cheesman retaliated for Sands’s

protected conduct. Cheesman established that he would have “‘taken the same

action in the absence of the protected activity.’” Smith v. Mosley, 532 F.3d 1270,



                                           10
1278 (11th Cir. 2008) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir.

1999)). Cheesman explained that the manipulation of Sands’s tooth and

examination of his gums was medically necessary and he saw no signs of an

infection or abscess that would require him to expedite Sands’s comprehensive

visit, and Dr. Shields agreed with Cheesman’s conclusions.

                               IV. CONCLUSION

      The judgment in favor of Cheesman is AFFIRMED.




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