Reich v. Silver Bow Detention Center
2:24-cv-00052
D. Mont.Jul 1, 2025Check TreatmentDocket
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ROBERT LEE REICH, CV 24-52-BU-DWM
Plaintiff,
VS. ORDER
DETENTION OFFICER JOHN
SULLIVAN, CHIEF MARK
JOHNSON, CAPTAIN RAY
VAUGHN, and THE CITY AND
COUNTY OF BUTTE-SILVER BOW,
Defendant.
Plaintiff Robert Reich, a state pretrial detainee proceeding pro se, alleges
that his constitutional rights were violated when he was not provided with
toothpaste at the Butte-Silver Bow Detention Center for several weeks. (Doc. 1.)
He names as defendants Detention Officer John Sullivan, Chief Mark Johnson,
Captain Ray Vaughn, and the City and County of Butte-Silver Bow (collectively,
“Defendants”). Ud.; Doc. 36 at 1 n.1.) Defendants have moved for summary
judgment on the ground that Reich was not denied toothpaste and, even if he had
been, he cannot show that Defendants were deliberately indifferent. (Docs. 55—59,
61.) Reich opposes. (Doc. 60.) For the reasons stated below, Defendants’ motion
is granted.
BACKGROUND
The following facts are undisputed unless otherwise noted, (see Doc. 57),
and viewed in the light most favorable to Reich, Tolan v. Cotton, 572 U.S. 650,
657 (2014) (per curiam).
I. Reich’s Claims
During the timeframe of April to August 2024, Reich was a pretrial detainee
at the Butte-Silver Bow Detention Center (the “Detention Center”) in Butte,
Montana. (Doc. 57 at J 1.) In May and June 2024, Reich filed several grievances
alleging that he was denied toothpaste for multiple weeks. (See Doc. 4.) In
response to those grievances, prison staff indicated that toothpaste had been on
back order and therefore they were trying to obtain some from a different vendor.
(See id.) While Reich alleges that the lack of toothpaste resulted in toothaches and
bad breath and that he suffered heartburn caused by alternative products, (see Doc.
1 at 5), Reich did not submit any requests for medical or dental treatment, (Doc. 57
at J 28). Although it is not entirely clear from the record, it appears Reich was
without toothpaste from mid-May 2024 to mid-June 2024.' (See Docs. 1, 4, 60.)
II. Toothpaste Procurement
Chief Johnson was responsible for ordering the hygiene products for inmates
! Filings by other inmates indicate that there was another period in July 2024 when
there was no toothpaste provided; however, that period post-dates the filing of
Reich’s Complaint, (see Doc. 1).
at the Detention Center from the Bob Barker Company (“Bob Barker”), which is a
nationwide supplier for federal, state, and local corrections and detention facilities.
(Doc. 57 at 4.) On April 29, 2024, Johnson ordered 10 cases of toothpaste from
Bob Barker, each containing 144 .85-ounce tubes of NatureMint toothpaste. (/d.
45.) The Detention Center received that order within a week or less. Ud. J 6.)
On May 2, 2024, Johnson ordered an additional 15 cases of toothpaste from
Bob Barker. Ud. | 9.) Upon placing that order, Johnson was notified that the
toothpaste was on “backorder and would ship separately” from the remainder of
the Detention Center’s order. (/d. J 10 (alteration omitted).) There is no indication
the Detention Center ever received this order.
On June 11, 2024, Johnson ordered 4 cases containing 1,000 .28-ounce
packets of NatureMint toothpaste from Bob Barker. Ud. 411.) Upon placing that
order Johnson was once again informed that the toothpaste was on “backorder and
would ship separately.” (/d. J 12 (alteration omitted).) There is no indication that
the Detention Center ever received this order.
On June 14, 2024, Johnson ordered 4 cases containing 240 .85-ounce tubes
of Colgate toothpaste from Bob Barker. (/d. { 13.) The Detention Center received
this order during the week of June 17, 2024. Ud. J 14.)
In July 2024, inmates complained about toothpaste because tubes were not
available for purchase at the canteen. (/d. J 16.) Asa result, on July 16, 2024, the
Detention Center purchased additional toothpaste from the Dollar Tree in Butte.
(id. J 17.) This toothpaste was provided to inmates individually in plastic cups
distributed by detention staff. (Jd. 916.) According to Defendants, each cup
provided enough toothpaste to last for one week but additional toothpaste could be
distributed upon request. (/d.)
On August 9, 2024, Johnson ordered 1 case containing 1,000 .15-ounce
packets of Colgate toothpaste and 5 cases containing 240 .85-ounce tubes of
Colgate toothpaste from Bob Barker. (/d. 4 18.) This order was received by the
Detention Center the week of August 12, 2024. (id. 719.) In the interim, on
August 11, 2024, the Detention Center purchased additional toothpaste from the
Dollar Tree in Butte, which was once again distributed in plastic cups. (id. { 23.)
On September 6, 2024, Johnson ordered 8 cases containing 240 .85-ounce
tubes of Colgate toothpaste from Bob Barker. (/d. § 25.) The Detention Center
received this order the following week. (/d. { 26.)
According to Johnson, “[e]ach inmate/pretrial detainee uses approximate one
tube [of toothpaste] per week.” (Doc. 58 at 7 11.) With an average inmate
population of 134 individuals, Johnson opines there would have been more than
enough toothpaste received in the above orders to satisfy all inmate needs. (See id.
at JJ 10, 11, 18, 23, 24, 30.)
II. Procedural Background
On June 28, 2024, Reich filed suit, alleging that the lack of toothpaste
violated his Eighth Amendment rights. (Doc. 1.) On August 14, 2024, Defendants
were ordered to answer, (Doc. 9), and they filed a motion to dismiss, (Doc. 17).
On January 10, 2025, that motion was granted as to Reich’s requests for punitive
damages and to have his bail lowered. (Doc. 36.) Defendants’ motion was
otherwise denied. (/d.) However, given Reich’s status as pretrial detainee, his
claim is proceeding under the Fourteenth, as opposed to the Eighth, Amendment.
(See id. at 6-9.) On January 22, 2025, Defendants answered. (Doc. 37.) A
scheduling order was entered, (Doc. 38), and Defendants filed the present motion
for summary judgment on May 21, 2025, (Doc. 55). That motion was
accompanied by the requisite Rand notice, (Doc. 59), and Reich responded, (Doc.
60).
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it impacts the outcome
of the case in accordance with governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248(1986). A dispute of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Jd. All reasonable inferences must be viewed in the light most favorable to the nonmoving party. Tatum v. Moody,768 F.3d 806, 814
(9th Cir. 2014). Nonetheless, the nonmoving party must identify, with some reasonable particularity, the evidence that it believes precludes summary judgment. See Soto v. Sweetman,882 F.3d 865, 872
(9th Cir. 2018) (explaining that while pro se
parties are exempted from “strict compliance with the summary judgment rules,”
they are “not exempt[ed] . . . from a// compliance[,]” such as the requirement to
identify or submit competent evidence in support of their claims).
ANALYSIS
The Due Process Clause requires that pretrial detainees be provided with
adequate food, clothing, shelter, sanitation, and medical care. See Shorter v. Baca,
895 F.3d 1176, 1185 (9th Cir. 2018) (addressing outdoor exercise). To prove a due
process violation based on the conditions of confinement, a plaintiff mush show:
(i) the defendant made an intentional decision with respect to the
conditions under which the plaintiff was confined; (ii) those conditions
put the plaintiff at substantial risk of suffering serious harm; (iii) the
defendant did not take reasonable available measures to abate that risk,
even though a reasonable official in the circumstances would have
appreciated the high degree of risk involved—making the
consequences of the defendant’s conduct obvious; and (iv) by not
taking such measures, the defendant caused the plaintiff's injuries.
Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125(9th Cir. 2018). The deprivation of basic hygiene items, such as toothpaste, can be considered a constitutional violation if it results in significant harm or poses a substantial risk of serious harm. See Hunt v. Dental Dep’t,865 F.2d 198, 200
(9th Cir. 1989) (“Dental care is one of
the most important medical needs of inmates.”).
Here, Defendants assert that they are entitled to summary judgment on the
grounds that: (1) the Detention Center had sufficient toothpaste for all inmates
during the timeframe of Reich’s allegations; (2) alternatives to toothpaste were
sufficient to avoid a substantial risk of serious harm; and (3) Defendants took
reasonable available measures to abate the risk.?, Because Defendants are correct
as to (3), summary judgment is granted in their favor.
A. Toothpaste Supply
Defendants first argue that Reich’s claim fails on the merits because the
undisputed facts show that the Detention Center had sufficient toothpaste for all
inmates during the relevant time frame. This argument is not premised on any
evidence or testimony as to conditions on the ground at the time; rather,
Defendants argue there was sufficient, available toothpaste because,
mathematically, the facility ordered enough toothpaste to equip the average inmate
population of 134 individuals with one “tube” per week. (See generally Doc. 37;
Doc. 58 at | 11.) While Reich disagrees with how Defendants have counted the
2 Defendants also argue that Reich has failed to meet the standard for municipal
liability. See Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019).
Because Reich’s Fourteenth Amendment claim fails on the merits, this argument is
not addressed here.
,
number of inmates receiving toothpaste, his primary response is that “the fact[]
remains that [he] was without [toothpaste] for 7-8 weeks.” (Doc. 60 at 2.)
Defendants’ calculations about order amounts and average use does nothing to
undermine that assertion. There is a fundamental difference between whether there
should have been enough toothpaste and whether there actually was enough
toothpaste. A genuine fact despite remains as to this issue. (See Doc. 4 at 1 (June
6, 2024 grievance stating that inmates had been without toothpaste for 5 to 6
weeks).) Nevertheless, Defendants’ efforts to obtain toothpaste and provide it to
inmates bears on whether they can be found constitutionally culpable as discussed
below.
B. Alternatives to Toothpaste
Defendants further argue that Reich’s claim fails because even if he did not
have access to toothpaste, “using an alternative to toothpaste, such as brushing
with water, does not transcend the routine discomforts of jail.” (Doc. 56 at 10.)
While Defendants once again proffer that at least one dental surgeon has opined
that “the greatest benefit of toothbrushing comes from the brush not the
toothpaste,” (id. at 11 (quoting Roshone v. Peters, 2014 WL 4547031, at *4 (D. Or.
Sept. 12, 2014)), they present no factual evidence to support that proposition.
Citing a letter a dentist wrote to an inmate in a separate case—a case decided on
exhaustion grounds—is not sufficient to prove that there is “no genuine dispute as
to any material fact” as to this issue. Fed. R. Civ. P. 56(a).
C. Reasonable Available Measures
Defendants further argue that Reich cannot show the third element under
Gordon is met here. Given the record, that argument is persuasive. “With respect
to the third element [under Gordon], the defendant’s conduct must be objectively
unreasonable, a test that will necessarily turn on the facts and circumstances of
each particular case.” Gordon, 888 F.3d at 1125(cleaned up). Ultimately, “the plaintiff must prove more than negligence but less than subjective intent— something akin to reckless disregard.” Jd. (quotation marks and footnote omitted). “The mere lack of due care by a state official does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Jd. (quotation marks omitted). Here, the undisputed facts show that Defendants consistently ordered or attempted to order toothpaste for the inmates. (See generally Doc. 57.) While there were delays in receiving toothpaste and Defendants did not immediately seek an alternative supply of toothpaste, the record does not support a finding that Defendants’ failures amounted to reckless disregard. To the contrary, the record shows that, despite the delay, Defendants took “reasonable available measures to abate th[e] risk,” Gordon,888 F.3d at 1125
, including switching the type of
toothpaste ordered and proactively buying toothpaste from a local vendor in the
interim, (see generally Doc. 57). Reich’s claim therefore fails on this ground.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Defendants’ motion for
summary judgment (Doc. 55) is GRANTED. The Clerk is directed to enter
judgment in favor of Defendants and close the case file.
DATED this _!9F day of July, 2025.
A D Al
District Judge
United States District Court
10