Timothy Briesemeister v. Nancy Johnston

                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 20-1607
                       ___________________________

                              Timothy Briesemeister

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

  Nancy Johnston, MSOP-Chief Executive Officer, Sued in their Individual and
Official Capacities; Cassandra Dallum, MSOP-Moose Lake Contracted Registered
 Dental Hygienist, Sued in their Individual and Official Capacities; Dr. Lawrence
 William, Minnesota Department of Corrections Dentist, Sued in their Individual
and Official Capacities; Dr. David Laurin, MSOP-Moose Lake Contracted Dentist,
      Sued in their Individual and Official Capacities; Jolee A. Sunnarborg,
   MSOP-Moose Lake Licensed Dental Assistant, Sued in their Individual and
                                Official Capacities

                     lllllllllllllllllllllDefendants - Appellees
                                      ____________

                    Appeal from United States District Court
                         for the District of Minnesota
                                 ____________

                          Submitted: October 21, 2020
                            Filed: October 26, 2020
                                 [Unpublished]
                                ____________

Before GRUENDER, WOLLMAN, and GRASZ, Circuit Judges.
                       ____________
PER CURIAM.

       In this pro se 42 U.S.C. § 1983 action, Timothy Briesemeister--who is civilly
committed to the Minnesota Sex Offender Program (MSOP)--appeals the district
court’s grant of the defendants’ motion to dismiss, for failure to state a claim, his
personal-capacity claims for damages against MSOP dental hygienist Cassandra
Dallum, MSOP dentist Dr. David Laurin, MSOP dental assistant Jolee Sunnarborg,
and Minnesota Department of Corrections dentist Dr. Lawrence William.1
Briesemeister’s claims arise from a delay in replacing a missing filling and the
eventual extraction of the tooth and development of a serious infection. We affirm
in part and reverse in part.

       We conclude that, even construing Briesemeister’s complaint liberally, the
claims against hygienist Dallum and dental assistant Sunnarborg were properly
dismissed. See Topchian v. JPMorgan Chase Bank, N.A., 

760 F.3d 843

, 848-49 (8th
Cir. 2014) (reviewing de novo the grant of a motion to dismiss for failure to state a
claim, construing the pro se complaint liberally, accepting as true all factual
allegations in the complaint, and drawing all reasonable inferences in the
nonmovant’s favor). We agree with the district court that, while Briesemeister’s
allegations established a serious medical need, Dallum’s and Sunnarborg’s actions,
or failures to act, did not amount to deliberate indifference. See Mead v. Palmer, 

794 F.3d 932

, 936 (8th Cir. 2015) (explaining that, “[t]o prove deliberate indifference,”
a civilly committed patient must show that “the defendants actually knew of, but
deliberately disregarded,” his serious medical need); Johnson v. Leonard, 

929 F.3d 1

       Briesemeister has waived his claims for declaratory and injunctive relief
against defendants in their official capacities, and his claims against MSOP official
Nancy Johnston. See Marksmeier v. Davie, 

622 F.3d 896

, 902 n.4 (8th Cir. 2010)
(explaining that an appellant waives any claims on which the appellant does not brief
this court).


                                         -2-
569, 575-78 (8th Cir. 2019) (rejecting pretrial detainee’s claim for denial of dental
care because defendants were not deliberately indifferent to his dental needs).2
Specifically, Briesemeister alleged that Dallum examined him, took x-rays, consulted
with Dr. William on whether there was a dental emergency, and later gave
Briesemeister dental wax to fill the tooth. As to Sunnarborg, while Briesemeister
alleged she responded, or failed to respond, to his medical request forms, he did not
allege that she herself decided when he could see a dentist for a new filling or what
medications should be prescribed after the tooth was later extracted.

       We also conclude that the claims against Dr. Laurin were properly dismissed.
While Dr. Laurin did not prescribe an antibiotic when he extracted the tooth after
problems developed with the replaced filling, we agree with the district court that the
decision not to prescribe an antibiotic based on postextraction examination findings
amounted to at most negligence. See Allard v. Baldwin, 

779 F.3d 768

, 771-72 (8th
Cir. 2015) (explaining that “[t]o prevail on a deliberate indifference claim,” the
plaintiff “must show more than even gross negligence” and establish a mental state
“akin to criminal recklessness: disregarding a known risk to the [plaintiff’s] health”).

      We conclude, however, that the claim against Dr. William was improperly
dismissed at the pleading stage. Briesemeister’s allegations indicated that although
Dallum “agreed that [Briesemeister’s condition] was bad,” Dr. William advised her
on June 30 that the missing filling was not a dental emergency, leading to a delay--



      2
       Briesemeister relies on Kingsley v. Hendrickson, 

576 U.S. 389

(2015), for the
proposition that the standard for deliberate indifference claims under the Due Process
Clause has been altered, and thus he had to prove only that the defendants’ actions
were not objectively reasonable. However, this court has continued to apply the
deliberate indifference standard to claims for denial of medical care for pretrial
detainees and thus for civilly committed patients.



                                          -3-
until September 28--to replace the filling, and that this delay may have led to the need
for the extraction and to the infection. At the pleading stage, it is unknown what
information Dr. William considered when he advised Dallum that there was no dental
emergency, whether he reviewed the dental x-rays, and what the x-rays showed. We
thus conclude that the dismissal was premature. See Ashcroft v. Iqbal, 

556 U.S. 662

,
678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”); McRaven v. Sanders, 

577 F.3d 974

, 983 (8th Cir. 2009)
(“[M]edical treatment may so deviate from the applicable standard of care as to
evidence a physician’s deliberate indifference.”). Accordingly, the dismissal of the
claim against Dr. William is reversed, and the case is remanded for further
proceedings consistent with this opinion. The district court’s opinion is affirmed in
all other respects.
                        ______________________________




                                          -4-
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