Marlo Morales v. Chris Rauch ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 25, 2021*
Decided August 31, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2991
MARLO U. MORALES, Appeal from the
Plaintiff-Appellant, United States District Court for the
Eastern District of Wisconsin.
v.
No. 18-CV-1967
CHRIS J. RAUCH,
Defendant-Appellee. William E. Duffin,
Magistrate Judge.
ORDER
Marlo Morales, a Wisconsin inmate, asserts that by not giving him his preferred
toothpaste, prison dentist Chris Rauch deliberately ignored his dental needs and
violated professional standards of care. The district court, through a magistrate judge
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-2991 Page 2
presiding by consent, entered summary judgment in favor of the dentist. Because no
evidence suggests that Morales’s dental care was inadequate, we affirm.
We begin by describing the state of the record. Local rules require the parties to
support in a separate statement each fact asserted or disputed and to cite admissible
evidence. E.D. WIS. CIV. L. R. 56(b)(2)(B). Dr. Rauch did so; Morales did not. Although
Morales was proceeding pro se, the magistrate judge permissibly required compliance
with local rules after warning Morales about them. See McCurry v. Kenco Logistics Servs.,
LLC, 942 F.3d 783, 787 (7th Cir. 2019). We thus recount the facts that Dr. Rauch adduced,
although we construe them in the light most favorable to Morales. Id.Morales has periodontitis, a serious gum disease. After his transfer to Redgranite
Correctional Institution in 2014, Dr. Rauch reviewed Morales’s dental records, noted the
periodontitis, and advised Morales to seek the dental care permitted by the prison’s
dental-treatment policy. Under that policy inmates may request dental cleanings once a
year. WIS. DEP’T OF CORRS., DIV. OF ADULT INSTS. POL’YS 500.40.05 § II(C) (Nov. 1, 2017).
Between cleanings prisoners are expected to maintain their own dental hygiene.
Id. 500.40.06 § I(B)(1). Beyond that inmates may receive “only those routine dental
treatment services necessary” to address “serious dental needs” and “maintain …
health.” Id. 500.40.06. At Morales’s first cleaning in 2015, the periodontitis had advanced
and was accompanied by gingivitis as well as a periodontal abscess, which Dr. Rauch
noted could lead to tooth loss. Based on the progression of Morales’s periodontitis,
Dr. Rauch told him that the treatment he had received at his previous prison—such as
dental scaling and root planing—would not reverse his disease. He also said that under
the dental-treatment policy, Morales’s options for fighting periodontitis were annual,
professional dental cleanings and his own daily dental hygiene. When Dr. Rauch saw
Morales at his yearly cleanings, he observed the ongoing periodontitis, which
eventually led to deep gaps in Morales’s gum lines and tooth loss. As a result Dr. Rauch
extracted at least three of Morales’s teeth.
Between cleanings the prison provided Morales with fluoride toothpaste to aid
his oral health. Morales, however, preferred Colgate Total Clean Mint toothpaste. That
toothpaste contains triclosan, which the American Dental Association and the Food and
Drug Administration have approved to stop the spread of gingivitis. He bought Colgate
from the prison’s canteen until February 2018, when the canteen no longer sold it.
Morales asked Dr. Rauch to tell the canteen operators to restock it. The dentist
responded that he had no authority over what items were offered at the canteen, but
that Morales could ask the canteen committee to sell his preferred toothpaste. See
No. 20-2991 Page 3
id. 309.52.01 § II(B) (Aug. 20, 2018). When Morales did so, the committee referred him
back to Dr. Rauch, whom Morales then asked to get him the Colgate or other treatment
for his periodontitis. Dr. Rauch replied that no toothpaste will cure periodontitis, and
under the prison’s policy, the next dental treatment available to him for his
periodontitis was his annual cleaning in August.
In this suit Morales alleges that Dr. Rauch violated his rights under the Eighth
Amendment and committed medical malpractice under Wisconsin state law by not
ordering Colgate toothpaste or an alternative for him. Dr. Rauch moved for summary
judgment. The magistrate judge concluded that no reasonable juror could find that
Dr. Rauch deliberately ignored Morales’s dental needs, and without expert testimony
about the standard of care, Morales’s medical-malpractice claim also failed.
On appeal Morales maintains that the record supports his claims that Dr. Rauch
deliberately ignored his periodontitis by failing to order Colgate or an alternative
treatment to slow the spread of the disease. He emphasizes that toothpaste is an
essential hygiene product that prisons must provide, see Board v. Farnham, 394 F.3d 469,
483 (7th Cir. 2005), and that the triclosan in Colgate combats the spread of gingivitis.
But no reasonable jury could find that Dr. Rauch deliberately ignored Morales’s
dental needs. To survive summary judgment on his Eighth Amendment claim, Morales
needed to furnish evidence that Dr. Rauch disregarded a known and serious medical
condition. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Morales did not meet his
burden for two reasons. First, no evidence contradicts Dr. Rauch’s opinion that neither
Colgate nor any other care available under the prison’s treatment options would stop
the periodontitis. True, the record suggests that Colgate can treat gingivitis, but
Morales’s claim is about periodontitis. Therefore, Dr. Rauch’s advice about Colgate and
his periodontitis was not “blatantly inappropriate.” Johnson v. Dominguez, 5 F.4th 818,
826 (7th Cir. 2021). Second, the undisputed facts show that Dr. Rauch treated Morales in
line with the prison’s dental-treatment policies, which Morales does not contest as
constitutionally inadequate. Dr. Rauch reviewed Morales’s records, examined his teeth
annually, and extracted his afflicted teeth as warranted. Beyond this the prison gave
Morales fluoride toothpaste, meeting any constitutional obligation. See Board, 394 F.3d
at 483. Although Morales favored a different brand of toothpaste, the Eighth
Amendment did not entitle him to his preferred toothpaste when he was otherwise
receiving adequate dental care. See Harper v. Santos, 847 F.3d 923, 927 (7th Cir. 2017).
Morales next contends that he created a triable claim that Dr. Rauch breached his
duty of care under Wisconsin state law. But Wisconsin substantive law requires that an
No. 20-2991 Page 4
expert testify to the standard of care and its breach unless “the situation is one where
the common knowledge of laymen affords a basis for finding negligence.” Wilson v.
Adams, 901 F.3d 816, 823 (7th Cir. 2018) (quoting Christianson v. Downs, 279 N.W.2d 918,
921 (Wis. 1979)); see also Carney-Hayes v. Nw. Wis. Home Care, Inc., 699 N.W.2d 524, 537
(Wis. 2005). The standard of care here required specialized dental knowledge from an
expert because the treatment for advanced periodontitis is not something commonly
known. See Wilson, 901 F.3d at 823. Morales did not provide expert testimony, so his
negligence claim cannot survive summary judgment. See id.
Finally, Morales challenges the magistrate judge’s decision to deny his cross-
motion for summary judgment. But the judge acted properly. Morales submitted his
motion four months after the deadline. In any case, the judge construed the motion as
his response to Dr. Rauch’s motion for summary judgment. Because we have concluded
that the judge correctly entered summary judgment for Dr. Rauch, it necessarily follows
that Morales’s motion for summary judgment fails.
We have reviewed the rest of Morales’s arguments, and none has merit.
AFFIRMED