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Hertz v. Beach

Supreme Court of Alaska

July 10, 2009

Sidney R. HERTZ, Appellant,
v.
Iris BEACH, Shirley Hawkins, and Lonnie Anderson, Appellees.

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Sidney R. Hertz, pro se, Spring Creek Correctional Center, Appellant.

Ruth Botstein, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellees.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

WINFREE, Justice.

I. INTRODUCTION

An inmate incarcerated by the Alaska Department of Corrections sued two nurses and a dentist, alleging they violated various professional duties and state and federal laws by failing to treat his dental problems timely or adequately. The superior court held that the inmate did not produce enough evidence, expert or otherwise, to support his claims and granted summary judgment in favor of the defendants. We affirm the superior court's decision on all claims except one against the dentist; we reverse the decision as to that single claim, vacate the judgment against the prisoner for attorney's fees, and remand for further proceedings.

II. FACTS AND PROCEEDINGS

A. Facts

Sidney R. Hertz was incarcerated at the State of Alaska's Lemon Creek Correctional Center in Juneau. Iris Beach and Shirley Hawkins are nurses employed by the Department of Corrections (DOC) at Lemon Creek. Dr. Lonnie Anderson, a private dentist, provides dental care to Lemon Creek inmates under a contract with DOC.

Hertz, who suffers from advanced periodontal disease, wore an upper partial denture secured to his remaining teeth with clasps. On April 28, 2005, an oral surgeon extracted two of Hertz's upper teeth. That same day Hertz filed a medical request for a new partial denture, complaining that his existing one no longer fit properly because of the extractions. On April 30 Beach advised Hertz that he was " on the dental list."

On May 24 Hertz filed a grievance (1) complaining that he had requested a new upper partial denture on April 28, and (2) requesting to see the dentist to have an impression made for a new upper partial denture. On June 6 Hertz submitted a medical request to have an impression made for a new upper partial denture, noting that the dentist had been to the prison twice without seeing him. Hertz was advised by Hawkins the next day that his name had " been placed on the list to see the dentist." Hertz reiterated his medical request on June 27, and on June 30 received the same response, this time from Beach.

On July 28 Hertz wrote to the DOC Commissioner's office asking about the status of his May 24 grievance. On August 16 Hertz filed another grievance: (1) stating that there had been no dentist at the prison for over eight weeks, he had been waiting four months for a new upper partial denture, and his existing upper partial denture was continually bruising the roof of his mouth; (2) asking whether a lawsuit was necessary to get dental treatment; and (3) requesting an appointment with a dentist to get an impression for a new upper partial denture.

On August 22 Hertz submitted another medical request, noting that it had been nine

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weeks since a dentist had been to the prison, that he needed a new upper partial denture, and that his existing upper partial denture was continually bruising the roof of his mouth. Beach responded that day that Hertz was " on the dental list."

In a memo dated August 24 regarding Hertz's August 16 grievance, Beach advised the prison compliance supervisor of the sequence of events for Hertz's medical requests, stated that Hertz " must be seen by the dentist and a request for a new partial plate must be submitted to DOC Medical for approval or denial," and recommended that Hertz see the dentist so the dentist could complete the forms necessary " for approval or denial."

On September 12 Hertz submitted another medical request, noting that the dentist had been to the prison on September 10 but had not called Hertz to see him. Hertz demanded to see the dentist immediately and threatened to file a lawsuit. The next day Hawkins replied that Hertz's name was " on the list to see the dentist."

Dr. Anderson saw Hertz on September 17 and took an impression for a new upper partial denture. The record is unclear as to when it did so, but DOC approved the replacement of Hertz's upper partial denture.

Hertz filed another medical request in December 2005, asking to see the dentist and receive his new upper partial denture. He was advised by Beach that he was " on the list to see the dentist."

On February 11, 2006, Hertz was seen by Dr. Anderson. The record does not reflect whether Dr. Anderson had received a new upper partial denture from the September 17, 2005, impression, but Dr. Anderson took another impression because Hertz's teeth had shifted in the interim.

On February 13 DOC responded to Hertz's original May 2005 grievance about his upper partial denture, noting that approval for a new partial plate had been granted. On February 14 DOC affirmed an earlier denial of Hertz's August 2005 grievance as duplicative of his original grievance.

Hertz received his new upper partial denture on April 8, 2006. Hertz believed the new upper partial denture did not fit and told this to Dr. Anderson when he received it.

A few days Before receiving the new upper partial denture, Hertz had submitted a medical request complaining of a cavity that made brushing his teeth painful. Dr. Anderson examined the cavity on April 8, 2006, when he installed the new upper partial denture, and described the cavity as " small and non-acute ... a low priority ... requir[ing] only ‘ routine dental treatment.’ "

Hertz submitted a medical request on April 9, complaining that " nothing has been done about my cavity." He filed a grievance on April 19, complaining that Dr. Anderson had again visited Lemon Creek but had not seen Hertz or treated his tooth.

On July 10 Hertz complained of a toothache and Beach notified a doctor, who authorized the use of ibuprofen and a topical pain reliever as needed for thirty days. Hertz filed a grievance on July 26, stating that his toothache was under control with his pain medications but demanding that his tooth and his upper partial denture be fixed. That day DOC's medical director authorized a referral to another dentist, Dr. David Logan, to examine and treat the decayed tooth and to adjust the upper partial denture if necessary. Dr. Logan extracted the decayed tooth the next day after concluding it was " mobile due to periodontal disease." Dr. Logan noted that Hertz's denture fit correctly and that " there are no adjustments that will improve its function." Dr. Logan also recommended removing the rest of Hertz's upper teeth and constructing a full denture as a long-term treatment goal.

In September Hertz was seen by a DOC staff dentist in Anchorage, Dr. Geraldine Morrow, who advised Hertz that he should have all remaining upper teeth extracted to make room for a full denture. Hertz agreed and later received the full denture.

B. Proceedings

In February 2006, shortly Before Hertz saw Dr. Anderson for the second impression, Hertz filed suit against Beach, Hawkins, Dr. Anderson, and DOC seeking: (1) a ...


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