Knox v. Lashbrooks

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TED KNOX, )

# N92676, )

Plaintiff, )

)

vs. ) Case No. 19-CV-0382-SMY

)

JACQUELINE LASHBROOKS, )

CRAIG ASSELMEIER, )

STEVEN NEWBOLD, )

DR. MCSHAN, )

GAIL WALLS, )

TRACY LEE, )

JAELEN MCWILLIAMS, )

TARA CHADDERTON, )

BEN DAHLEM, )

SHELBY DUNN, )

LEE GREGSON, )

LAKESHA HAMBY, )

SUSAN KIRK, )

AMY LANG, )

NICOLE MARSHALL, )

HEATHER MCGHEE, )

ALLYCE MOLL, )

MARTHA OAKLEY, )

BRENDA OETJEN, )

RON SKIDMORE, )

BRANDY TRIPP, )

AUGUSTA WILLIAMS, and )

WEXFORD HEALTH SOURCES, INC., )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Ted Knox, an inmate of the Illinois Department of Corrections (“IDOC”) currently

incarcerated at Menard Correctional Center (“Menard”), brings this action for alleged deprivations

of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he did not receive

adequate care for a dental emergency, that some staff retaliated against him in relation to his dental

issue, and that Defendants Lashbrook and Wexford maintained policies or procedures that

condoned the harms he sustained. He seeks monetary compensation and a recommendation that

Wexford implement an appropriate dental care policy.

This case is now before the Court for preliminary review of the Complaint under 28 U.S.C.

§ 1915A, which requires the Court to screen prisoner Complaints to filter out nonmeritorious

claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally frivolous or malicious,

fails to state a claim for relief, or requests money damages from an immune defendant must be

dismissed. 28 U.S.C. § 1915A(b).

The Complaint

Plaintiff makes the following allegations in the Complaint: Plaintiff received inadequate

care for an infected abscessed tooth over the course of approximately three weeks from April 23,

2017, through May 18, 2017. The issue started on April 23, 2017, when Plaintiff noticed that one

of his front teeth became problematic (Doc. 1 at 9). He submitted a request to the healthcare unit

for assistance, because he has a documented history of periodontitis gum disease related to his

diabetes (Id.). After waiting a few days, Plaintiff submitted a request for urgent care because the

tooth condition had worsened (Id.). His pain was so great it interfered with his ability to sleep,

read, write, clean, or attend to other daily tasks (Id. at 9-10). He spit blood and pus and was unable

to properly brush his teeth due to the infection (Id. at 10). Plaintiff’s cellmate expressed dismay

because the infection caused his breath to smell (Id.).

A week passed with no care rendered (Id.). On April 30, 2017, Plaintiff awoke to find his

pillow covered in blood (Id.). He notified Nurse Dunn that his tooth was dangling and that he had

constant blood and pus discharge, but she denied care (Id.). Plaintiff submitted a third request for

urgent dental care that same day (Id.).

On May 4, 2017, Plaintiff notified Defendant Lang of the worsening infection (Id. at 11).

She refused to look at his tooth because she had no dental knowledge and she also refused pain

medication (Id.). Defendant Tripp followed suit on May 5, 2017 when she denied care and teased

Plaintiff to put the tooth under his pillow for the tooth fairy (Id.). Defendant Oakley also refused

care on May 5, 2017 and indicated that Plaintiff had to wait his turn for care just like any person

(including her) (Id. at 11-12).

Plaintiff asked Defendant Oetjen for care on May 6, 2017, but she refused assistance (Id.

at 12). Later that day, Defendants Oakley and Moll both refused care on the pretext that nothing

could be done while the institution was on lockdown (Id.). On May 7, 2017, Defendants

Chadderton, Marshall, and McGhee all refused care and told Plaintiff he would have to wait to see

the dental unit (Id. at 12-13). The same continued on May 8, 2017 when Defendants Hamby, Lang,

Lee, and Kirk all denied assistance of any form (Id. at 14-15).

On May 9, 2017, Defendants Chadderton and Lang denied care (Id. at 15-16). Defendant

Skidmore characterized the issue as a non-emergency at Menard but offered to get a pliers for the

“old school plier treatment” (Id. at 15). Plaintiff lodged a fourth request for urgent dental care (Id.

at 16).

Defendants Dunn and Lang refused care on May 10, 2017 and Lang threatened to write

Plaintiff a ticket or send him to segregation if he kept complaining about his tooth (Id. at 16).

Plaintiff reported Lang’s threat to Defendant Baylon and Baylon went to notify Defendant Murray

of the tooth issue (Id.). Plaintiff also complained to Defendant McGhee that same day and sent

emergency grievances to Defendant Lashbrook and the Administrative Review Board (Id.).

Defendant Hamby refused care on May 11, 2017 because the institution was still on

lockdown (Id. at 17). An unknown officer notified Plaintiff that his dental appointment was

rescheduled due to lockdown (Id.). Despite the lockdown, there was movement about the facility

from April 23, 2017 to May 15, 2017 (Id. at 17-18). Plaintiff’s requests to Defendant Lang for

care on May 11, 2017, went ignored (Id. at 18).

Defendant Dahlem refused care on May 12, 2017 (Id. at 19). Defendant Oakley also

refused to accept a mental health grievance form from Plaintiff on this day because mental health

could not address dental problems (Id.). Later in the day, Defendant Gregson refused care and told

Plaintiff he was silly to seek help via mental health requests (Id. at 19-20).

Plaintiff declared a crisis on May 13, 2017 due to prolonged and worsening pain and

suffering (Id. at 20). Defendant Dunn refused to make the crisis official, but Officer Epplin

subsequently contacted a crisis team member (Id.). Team-member Defendant McWilliams came

to Plaintiff’s cell on May 13, 2017, and shortly thereafter, an unknown officer took him to the

shower bull-pen (Id.). Although McWilliams promised to contact the dentist and to inform his

boss (Defendant McShan) of the problem, the dentist was not contacted (Id. at 21). Defendant

McShan made no referral to the dentist (Id.). Lieutenant Englarge claimed that he could see and

smell the infection and would contact healthcare himself (Id. at 22). On May 14, 2017, Defendants

Oetjen, Marshall and McGhee all declined assistance (Id. at 22). Plaintiff wrote a follow-up to

Defendant Lashbrook about the status of his emergency grievance (Id.).

The lock-down ended on May 15, 2017 and other offenders began to see the dental unit

(Id. at 23). However, on that day, Defendants Lang, Hamby, and Dunn continued to ignore or

refuse Plaintiffs requests for assistance (Id.). On May 17, 2017, Defendants Hamby, Williams,

and Moll declined assistance (Id. at 24).

As Plaintiff ate on May 18, 2017, his tooth broke and bled profusely (Id. at 24). He was

quickly escorted to the healthcare area (Id.). A dental assistant cleaned the bleeding area, and

Defendant Asselmeier then entered the room (Id. at 24-25). Asselmeier informed Plaintiff that he

would always be at the bottom of the list for care if he kept his teeth, that he would not get an MRI

to determine the extent of the infection, and that his only treatment option was removal of all teeth

(Id. at 25). Plaintiff received a prescription for antibiotics and acetaminophen (Id.).

On May 19, 2017, Defendant Dunn refused Plaintiff’s request slip for a soft diet and told

him he would regret initiating a grievance against her (Id. at 26). Defendant Steelhorn, a mental

health supervisor, interviewed Plaintiff on that day and noted that she could smell the infection

(Id.). She indicated that she would check into a soft diet but warned Plaintiff it would not be tasty

(Id.). Plaintiff followed up with Defendant Lashbrook a final time about his May 10, 2017

grievance, but he received no response (Id.).

Defendant Wexford has an official policy of denying examinations and other medical care

to inmates during institutional lockdowns (Id. at 27). Defendants Oakley, Moll, Kirk, Chadderton,

Dunn, Hamby, Asselmeier and Newbold all acted or failed to act because of the policy or lack

thereof (Id.). Defendant Wexford should have a policy or procedure to provide treatment for

diabetic prisoners with periodontal gum disease even during a lock-down (Id. at 28-29). Because

they did not have a practice of treating prisoners with serious dental conditions, Plaintiff was forced

to endure pain and suffering from April 23, 2017 to May 17, 2017 (Id.). Defendant Lashbrook

participated in the harmful custom or policy by allowing Plaintiff’s condition to go untreated

during the lockdown (Id.).

Defendant Gail Walls failed in her position as healthcare administrator to respond to any

of Plaintiff’s requests for urgent care from April 23, 2017 onward (Doc. 1-1 at 1). Walls was on

notice of the severity of Plaintiff’s periodontitis because he had x-rays documenting the condition

in his medical file (Id. at 1-2). Walls maintained a policy or procedure of providing “arbitrary”

healthcare during lockdowns (Id. at 2-3). Her behavior prolonged Plaintiff’s pain and suffering,

and she unequivocally knew that was the case (Id. at 3-4).

Defendants Dunn, Hamby, and Lang retaliated against Plaintiff for his ongoing complaints

about his tooth (Id. at 4-5). Each of the three Defendants told him that they either did not care he

wrote a grievance about them or that he would regret it (Id.).

Based on the allegations in the Complaint, the Court finds it convenient to divide this action

into the following Counts:

Count 1: Eighth Amendment deliberate indifference for failure to

provide timely treatment for Plaintiff’s abscessed and infected

tooth against Defendants Lashbrook, Asselmeier, Newbold,

McShan, Lee, McWilliams, Chadderton, Dahlem, Dunn,

Gregson, Hamby, Kirk, Lang, Marshall, McGhee, Moll, Oakley,

Oetjen, Skidmore, Tripp, and Williams.

Count 2: Eighth Amendment deliberate indifference via a policy or

practice, or lack thereof, of declining appropriate dental care by

Defendants Wexford and Lashbrook.

Count 3: Eighth Amendment deliberate indifference against Defendant

Gail Walls for her unsatisfactory response to Plaintiff’s

grievances about his emergent dental care needs.

Count 4: Retaliation by Defendants Dunn, Hamby, and Lang for

Plaintiff’s grievances about his dental issues.

The parties and the Court will use these designations in all future pleadings and orders, unless

otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the

Complaint but not addressed in this Order should be considered dismissed without prejudice

as inadequately pled under the Twombly pleading standard.1

Preliminary Dismissals

Steven Newbold is named as a defendant in the case caption, but there are no allegations

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which

relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”).

against him. Under Federal Rule of Civil Procedure 8, the Complaint must include a short, plain

statement of the case against each individual. Merely naming a party in the caption of a Complaint

is not enough to state a claim against him. Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).

Further, Plaintiff’s failure to assert a specific act of wrongdoing as to this individual does not meet

the personal involvement requirement necessary for Section 1983 liability. Gentry v. Duckworth,

65 F.3d 555, 561 (7th Cir. 1995). Accordingly, Defendant Newbold is DISMISSED without

prejudice.

Additionally, Plaintiff discussed conduct by Baylon, Murray, Epplin, Englarge, and

Steelhorn, but they are not identified as defendants in the case caption. The Court will not treat

individuals not listed in the caption as defendants, and any claims against them are DISMISSED

without prejudice. Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (holding that to

be properly considered a party, a defendant must be specified in the caption).

Discussion

Count 1

The Eighth Amendment prohibits the cruel and unusual punishment of inmates and

imposes an obligation upon prison officials to provide them with adequate medical care for serious

medical conditions. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). An Eighth Amendment

claim for the denial of medical care has an objective and a subjective component. The objective

component requires an inmate to demonstrate that he suffers from an “objectively, sufficiently

serious” medical condition. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting Farmer

v. Brennan, 511 U.S. 825, 834 (1994)). A condition is considered sufficiently serious if failure to

treat it could result in the unnecessary and wanton infliction of pain. See Gutierrez v. Peters, 111

F.3d 1364, 1373 (7th Cir. 1997). The subjective component requires Plaintiff to demonstrate that

each individual defendant responded to his serious medical condition with deliberate indifference.

This occurs when an official “know[s] of and disregard[s] an excessive risk to inmate health.”

Greeno, 414 F.3d at 653.

The doctrine of respondeat superior is inapplicable to § 1983 actions. Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Therefore, liability hinges on personal

responsibility for the deprivation of a constitutional right. Id. at 740 (citation omitted).

The decision of a medical professional to do nothing, even though she knows that a patient

has a serious medical condition requiring prompt treatment that the professional is capable of and

responsible for providing, amounts to deliberate indifference. Dobbey v. Mitchell-Lawshea et al.,

806 F.3d 938, 940 (7th Cir. 2015). Any minimally competent dentist who knows that a patient has

reported an abscess also knows that if the report is correct, the patient needs prompt medical

treatment. Therefore, a dentist demonstrates deliberate indifference by failing to treat the patient

promptly while knowing that the patient may well be in serious pain that is treatable.

A correctional officer who is aware of complaints of pain and does nothing to help a

suffering prisoner obtain treatment is likewise exhibiting deliberate indifference. His failure to act

cannot be excused on grounds of cost or danger of acting, see, e.g., Johnson v. Doughty, 433 F.3d

1001, 1011–13 (7th Cir. 2006); Berry v. Peterman, 604 F.3d 435, 440–41 (7th Cir. 2010), as there

is neither cost nor danger.

Here, Plaintiff alleges that he received no treatment for an infected abscessed tooth from

April 23, 2017 through May 18, 2017. He also alleges that he complained of his condition to

Defendants Lashbrook, Asselmeier, McShan, Lee, McWilliams, Chadderton, Dahlem, Dunn,

Gregson, Hamby, Kirk, Lang, Marshall, McGhee, Moll, Oakley, Oetjen, Skidmore, and Tripp.

These allegations are sufficient for Count 1 to proceed beyond screening against these individuals.

Count 2

Wexford (a corporate medical contractor) may be held liable for deliberate indifference if

an inmate can establish that he has been harmed by a custom, policy, or practice of Wexford. See,

Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 796 (7th Cir. 2014). While a few discreet

incidents of less than ideal care cannot be strung together to establish a policy or practice, a

corporate medical provider may be at fault for failing to make a policy to address serious medical

conditions. Glisson v. Indiana Dep’t of Corr., 849 F.3d 372, 381 (7th Cir. 2017). Id. at 381.

Plaintiff’s allegations with respect to an existing custom and practice by Wexford regarding

denying inmates medical care during lockdowns are sufficient to state a deliberate indifference

claim against Wexford. Accordingly, Plaintiff’s claim against Wexford in Count 2 will be allowed

to proceed.

Plaintiff also names Defendant Lashbrook in the policy or practice claim, alleging that she

participates in the policy or practice of denying appropriate dental treatment during institutional

lockdowns. He alleges that he communicated with Lashbrook multiple times about his need for

urgent dental care to no avail. A policy or practice claim against a non-policymaker must rest

upon more than an isolated incident of wrongdoing. See Thomas v. Cook County Sheriff’s Dep’t,

604 F.3d 293, 303 (7th Cir. 2009). However, per the Glisson rational, the decision to not create a

policy for certain critical care situations could in and of itself be a constitutional violation. For the

reasons outlined in regard to Wexford, Plaintiff’s claim against Lashbrook in Count 2 will also

proceed beyond screening.

Count 3

Prison grievance procedures are not constitutionally mandated and thus do not implicate

the Due Process Clause. As such, the alleged mishandling of grievances “by persons who

otherwise did not cause or participate in the underlying conduct states no claim.” Owens v.

Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Plaintiff alleges that Gail Walls harmed him by failing

to respond to his grievances. He also alleges that she should have had a practice in place as the

Healthcare Administrator to provide needed medical care to inmates during institutional

lockdowns. For the reasons set forth with respect to Counts 1 and 2, Count 3 will proceed against

Defendant Walls for deliberate indifference to Plaintiff’s medical condition.

Count 4

“An act taken in retaliation for the exercise of a constitutionally protected right violates the

Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). To prevail on a retaliation

claim, an inmate must show that “(1) he engaged in activity protected by the First Amendment;

(2) he suffered a deprivation likely to deter such activity; and (3) the First Amendment activity

was at least a motivating factor in the decision to impose the deprivation.” Hawkins v. Mitchell,

756 F.3d 983, 996 (7th Cir. 2014) (citations omitted).

Plaintiff alleges that he filed grievances about his dental condition, and three defendants

responded by taunting him about his condition and indicating that because he grieved their

conduct, they would further withhold care. These allegations are sufficient to state a retaliation

claim against those defendants. Accordingly, Count 4 will proceed against Defendants Dunn,

Hamby, and Lang.

Disposition

IT IS HEREBY ORDERED that Count 1 will proceed against Defendants Lashbrook,

Asselmeier, McShan, Lee, McWilliams, Chadderton, Dahlem, Dunn, Gregson, Hamby, Kirk,

Lang, Marshall, McGhee, Moll, Oakley, Oetjen, Skidmore, Tripp, and Williams.

IT IS ORDERED that Count 2 will proceed against Defendants Wexford Health

Source, Inc., and Jacqueline Lashbrook.

IT IS ORDERED that Count 3 will proceed against Defendant Gail Walls.

IT IS ORDERED that Count 4 will proceed against Defendants Dunn, Hamby, and

Lang.

IT IS ORDERED that Defendant Steven Newbold is DISMISSED without prejudice and

the Clerk of Court is DIRECTED to TERMINATE him as a party in the Court’s Case

Management/Electronic Case Filing system.

IT IS ORDERED that the Clerk of Court shall prepare for Defendants Lashbrook,

Asselmeier, McShan, Lee, McWilliams, Chadderton, Dahlem, Dunn, Gregson, Hamby, Kirk,

Lang, Marshall, McGhee, Moll, Oakley, Oetjen, Skidmore, Tripp, Williams, Walls, and Wexford

Health Source, Inc.: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons),

and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms,

a copy of the Complaint, and this Memorandum and Order to each Defendant’s place of

employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service

of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk

shall take appropriate steps to effect formal service on Defendant, and the Court will require

Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of

Civil Procedure.

If a Defendant cannot be found at the work address provided by Plaintiff, the employer

shall furnish the Clerk with the Defendant’s current work address, or, if not known, the

Defendant’s last-known address. This information shall be used only for sending the forms as

directed above or for formally effecting service. Any documentation of the address shall be

retained only by the Clerk. Address information shall not be maintained in the court file or

disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. Section 1997e(g). Pursuant to

Administrative Order No. 244, Defendants need only respond to the issues stated in this

Merit Review Order.

IT IS ORDERED that if judgment is rendered against Plaintiff, and the judgment includes

the payment of costs under Section 1915, Plaintiff will be required to pay the full amount of the

costs, regardless of whether his application to proceed in forma pauperis is granted. See 28 U.S.C.

§ 1915(f)(2)(A).

IT IS ORDERED that this entire matter shall be REFERRED to a United States

Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(3) and 28 U.S.C. §

636(c), should all the parties consent to such a referral.

Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk

of Court and each opposing party informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See Fed. R. Civ. P. 41(b).

IT IS SO ORDERED.

DATED: SEPTEMBER 9, 2019

s/ Staci M. Yandle_________

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the appropriate Defendants of your lawsuit

and serve them with a copy of your complaint. After service has been achieved, Defendants will

enter their appearance and file an Answer to your Complaint. It will likely take at least 60 days

from the date of this Order to receive Defendants’ Answers, but it is entirely possible that it will

take 90 days or more. When all Defendants have filed Answers, the Court will enter a Scheduling

Order containing important information on deadlines, discovery, and procedures. Plaintiff is

advised to wait until counsel has appeared for Defendants before filing any motions, to give

Defendants notice and an opportunity to respond to those motions. Motions filed before

Defendants’ counsel has filed an appearance will generally be denied as premature. Plaintiff need

not submit any evidence to the Court at this time, unless specifically directed to do so.