Robert William Avery v. Stringfellow Dentistry Defendant Jessica Jackson Breedlove, Dentist, Stringfellow…

United States Court of Appeals
For the Eighth Circuit
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No. 22-3250
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Robert William Avery
lllllllllllllllllllllPlaintiff - Appellant
v.
Stringfellow Dentistry
lllllllllllllllllllllDefendant
Jessica Jackson Breedlove, Dentist, Stringfellow Dentistry
lllllllllllllllllllllDefendant - Appellee
Wellpath Health Care; Vesta Mullins, Health Services Administrator, Wellpath
Health Care, now known as Vesta Mullins Blanks
lllllllllllllllllllllDefendants
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: August 3, 2023
Filed: August 17, 2023
[Unpublished]
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Before COLLOTON, SHEPHERD, and KOBES, Circuit Judges.
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PER CURIAM.
Inmate Robert Avery appeals following the district court’s1 adverse grant of
summary judgment in his pro se 42 U.S.C. § 1983 action against Jessica Jackson
Breedlove, D.D.S. Upon careful de novo review, we affirm. See Hancock v. Arnott,
39 F.4th 482, 486 (8th Cir. 2022) (standard of review). We find that the district court
properly dismissed Avery’s claims regarding his dental treatment after July 8, 2020,
as he did not exhaust his administrative remedies as to those claims before filing this
action. See 42 U.S.C. § 1997e(a) (prisoner shall not bring § 1983 action until he has
exhausted available administrative remedies); Hammett v. Cofield, 681 F.3d 945,
947, 948-49 (8th Cir. 2012) (per curiam) (inmate satisfies § 1997e(a) by pursuing
prison grievance process to its final stage to adverse decision on merits; grievance
that violated prison’s rule against duplicate complaints was not properly exhausted).
We also find that summary judgment for Dr. Breedlove on the merits of
Avery’s exhausted claims was proper, as Avery did not show that he had a serious
medical need with respect to the cavity in tooth #11 before July 8, 2020, or that Dr.
Breedlove actually knew of his abscessed #5 tooth before that date. See Hancock, 39
F.4th at 486 (to establish deliberate indifference, plaintiff must show that he suffered
from objectively serious medical need, and that defendant had actual knowledge of
that need but deliberately disregarded it); Holden v. Hirner, 663 F.3d 336, 342-43
(8th Cir. 2011) (toothache was not serious medical need where it had no outward
signs of bleeding or swelling, and there was no evidence that medical professional
diagnosed it as requiring treatment or that delay in treatment negatively impacted
prognosis).
1The Honorable D.P. Marshall Jr., Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District
of Arkansas.
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The judgment is affirmed. See 8th Cir. R. 47B.
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