Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.




                                           ENTRY ORDER


                           SUPREME COURT DOCKET NO. 2015-203

                                     NOVEMBER TERM, 2015

 Rikkie Kane                                           }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito                                        }    DOCKET NO. 376-6-13 Wncv

                                                            Trial Judge: Mary Miles Teachout

                          In the above-entitled cause, the Clerk will enter:

        Plaintiff, an inmate committed to the custody of the Commissioner of Corrections,
appeals pro se from a superior court order dismissing his Rule 75 complaint seeking an order
requiring the Commissioner to provide him additional dental treatment. We affirm.

        The facts may be summarized as follows. Plaintiff was incarcerated in Vermont for some
period of time before being transferred to the Lee Adjustment Center in Kentucky. He
experienced chronic dental problems in Vermont and Kentucky, and was diagnosed by a
specialist in Kentucky with severe localized periodontitis and inflamed gingiva. The specialist’s
notes indicate that he recommended removing several teeth and cleaning the pockets, and further
noted “to replace missing teeth implant options or RPC [possibly a reference to removable partial
denture] options discussed.” In late May 2014, the specialist extracted several teeth and cleaned
the area. An undated letter from the specialist to plaintiff summarized his treatment and
explained that “[p]eriodontal treatment is not a one time treatment it is an ongoing process, with
daily oral care (brushing, flossing, eating healthy) future follow up will need to be done for
replacement of missing teeth and monitoring of the periodontal disease.”

        In early July 2014, plaintiff was transferred back to the Northern State Correctional
Facility in Vermont. In an amended complaint filed in November 2014, plaintiff claimed, among
other assertions, that he was not receiving sufficient follow-up treatment, including regular three-
month examinations and cleanings, dental implants, and Peridex mouth rinse to prevent
infection. The court held an evidentiary hearing in February 2015. Plaintiff was present,
represented himself, and testified on his own behalf. When questioned by the court as to the
precise relief that he was seeking, plaintiff indicated that it was replacement of the missing teeth,
Peridex to control infections, and regular, frequent monitoring.
        The dental director and staff dentist for the Northern State Correctional Facility testified
for the State. He testified that plaintiff had seen a dentist four times since returning from
Kentucky, in July 2014, August 2014, November 2014, and January 2015. He stated that
plaintiff’s treatment for periodontal disease, or infection in the area of the gum and bones, had
been successful and was complete. Plaintiff’s examinations revealed no further infection and
good oral hygiene. He described Peridex as a mouth rinse to treat gingivitis, not periodontal
disease, and explained that it contained 11.6 percent alcohol and therefore the DOC does not
allow inmates to keep it with them. He described dental implants as an optional or elective
procedure to replace the teeth that were removed, but stated that such implants were not
medically necessary. He was of the view that plaintiff’s disease had resolved and that he was
receiving adequate follow-up examinations and monitoring.

        In its written decision, the trial court found the testimony of the DOC dentist to be
credible, and based thereon found that plaintiff’s periodontal disease was in remission; that
dental implants were an elective option to replace the extracted teeth but were not medically
necessary; that Peridex was not indicated for the treatment of any condition currently afflicting
plaintiff; and that more frequent examinations and monitoring was not medically required since
the periodontal disease had resolved. Although plaintiff’s treating dentist in Kentucky referred
to implants as one option for follow-up care to replace the extracted teeth, his notes and letters do
not contradict the testimony of the DOC staff dentist that implants were not medically necessary.
Accordingly, the court concluded that plaintiff was receiving adequate dental care, and dismissed
the complaint. This pro se appeal by plaintiff followed.

        Although plaintiff’s brief makes a number of allegations relating to the progress of his
dental condition over time and DOC’s allegedly inadequate responses, his claims concerning the
issues specifically raised and addressed by the trial court in this proceeding are essentially two:
(1) that he was not allowed to have the dentist who treated him in Kentucky participate as a
witness by telephone; and (2) that the evidence does not support the court’s decision.

        As to the first claim, the record discloses that plaintiff filed a motion for the appearance
by telephone of his treating dentist in Kentucky “to corroborate” the statements in his treatment
notes. At the start of the hearing, the court asked plaintiff about the motion, and plaintiff
indicated that he did not want to call the dentist for any additional opinions, but that he “may
[want to] give him a call during this proceeding just to corroborate the paperwork that he sent
me. That’s all.” The court indicated that the hearing would proceed, and directed plaintiff to
notify the court “if there’s a specific reason that you would want to do that.” Plaintiff did not
return to the subject or renew the request. Accordingly, any claim of error in this regard was
waived.

        Plaintiff also contends that the evidence fails to support the court’s findings and
conclusion that he was receiving adequate dental care. The testimony by the DOC staff dentist
and director of dental services summarized above, which the trial court here found to be credible,
amply supported the court’s findings that the additional treatments and monitoring sought by
plaintiff were not medically necessary. Accordingly, we find no error, and no basis to disturb the
judgment. See In re A.F., 160 Vt. 175, 178 (1993) (reaffirming settled standard that court’s



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findings will stand unless clearly erroneous, and its conclusions will be upheld if reasonably
supported by findings).

       Affirmed.



                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice

                                             _______________________________________
                                             Harold E. Eaton, Jr., Associate Justice




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