Watford v. Newbold

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MARLON WATFORD,

Plaintiff,

v. Case No. 3:17-CV-1252-NJR-GCS

STEVEN NEWBOLD, and

WARDEN OF MENARD,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Marlon Watford, an inmate in the Illinois Department of Corrections, filed

this case pursuant to 42 U.S.C. § 1983 on November 17, 2017, alleging Defendants

Dr. Steven Newbold and Dr. Veera Kaja, both dentists, were deliberately indifferent to

his serious dental condition in violation of the Eighth Amendment (Doc. 5). Specifically,

Watford claimed Dr. Newbold diagnosed him with a cavity in tooth #31 on March 17,

2014, but concealed that fact from him until May 23, 2016 (Doc. 1 at pp. 3-4). And despite

Watford’s requests for a permanent filling, Defendants refused to treat the cavity (Id.).

On May 2, 2019, the undersigned entered an order granting summary judgment

to Dr. Kaja on the issue of exhaustion of administrative remedies and granting it in part

to Dr. Newbold, finding that Watford failed to exhaust his claim that Defendants failed

to treat his cavity after its alleged existence was uncovered on May 23, 2016 (Doc. 67).

The Court further indicated that it intended to grant judgment as a matter of law

in favor of Dr. Newbold on the remaining claim that Dr. Newbold fraudulently concealed

the cavity from March 17, 2014, to May 23, 2016, pursuant to Rule 56(f) of the Federal

Rules of Civil Procedure (Doc. 67). That rule permits the Court to consider summary

judgment on its own after identifying for the parties material facts that may not be

genuinely in dispute. FED. R. CIV. P. 56(f). The Court found that evidence attached to

Watford’s own filings with the Court demonstrated that a different doctor—Dr. Stroh—

was actually the doctor who conducted his March 17, 2014 biennial dental exam, not Dr.

Newbold. (Doc. 43 at p. 44; see also Doc. 40-5, p. 2). Watford even appeared to admit that

fact when he argued that Dr. Newbold “adopted the practice and pattern of other staff

members (e.g., Dr. Stroh) of concealing my cavity.” (Doc. 43 at p. 27). Based on this

evidence, the Court found that Watford could not genuinely dispute that it was Dr. Stroh

who allegedly hid his cavity diagnosis and failed to refer him for a filling in 2014, thereby

allegedly causing him to suffer in pain for two years.

Moreover, Dr. Newbold testified that while Watford was placed on the filling list

for tooth #31 on May 23, 2016, a subsequent x-ray indicated no radiographic decay

(Doc. 29 at p. 9). Dr. Newbold explained that what looked like a cavity upon visual

inspection on May 23, 2016, could have been a defect in the form of a groove that turned

brown (Id. at p. 10). According to Dr. Newbold, the defect was not a serious dental issue

needing immediate treatment (Id.). He also testified that the pain Watford reported at

tooth #31 could have been coming from his impacted wisdom tooth at #32 (Id.). Thus, the

Court found that Dr. Newbold’s testimony indicated that Watford never even had a

cavity at tooth #31. And, based on those facts, no reasonable jury could find that Dr.

Newbold was deliberately indifferent to a serious dental need. Accordingly, the Court

found that summary judgment in favor of Dr. Newbold was appropriate.

Under Federal Rule of Civil Procedure 56(f), before the Court may sua sponte grant

summary judgment, it must provide the parties with notice and a reasonable time to

respond. Thus, the Court gave the parties time to file an opposition supported by

competent evidence demonstrating a genuine issue of material fact that would prevent

this Court from entering judgment as a matter of law.

Watford filed a response in opposition to the Court’s proposed entry of judgment

(Doc. 69), asserting that sua sponte summary judgment on the merits would be premature

and unfair, depriving him of the opportunity to secure an expert opinion to support his

claim that he has a cavity on tooth #31. He also argues that Dr. Newbold had “adopted”

the fact that Watford had a cavity on tooth #31 by virtue of reviewing his dental records.

He also claims that Dr. Newbold’s failure to provide his signature next to his biennial

dental examination record implies that Dr. Newbold had a guilty conscious when he

attempted to further conceal the correct diagnosis of Watford’s cavity on tooth #31.

In response, Defendant Dr. Newbold argues that Watford’s dental records show

he did not have a cavity in tooth #31 but rather a defect that did not constitute a serious

medical need (Doc. 72). Thus, Watford did not have a serious medical need requiring

immediate care as required to prove a claim of deliberate indifference. Moreover, the

evidence in the record clearly shows that Dr. Newbold was not the dentist who treated

Watford on March 17, 2014. Thus, he could not have been personally responsible for

Watford’s alleged injuries. Finally, while Watford claims he needs time to hire an expert,

Defendant notes that Watford has had 18 months to procure evidence and has already

made nine attempts to hire an expert with no success. Therefore, it is unlikely that

additional time would make any difference in this case.

In reply, Watford asserts there is a genuine issue of material fact as to whether he

had a cavity on tooth #31 on May 23, 2016, which should preclude the entry of summary

judgment (Doc. 74).

On September 25, 2019, Watford moved to supplement his opposition to the

proposed entry of judgment as a matter of law with an affidavit from his fellow inmate,

Mark Winger (Doc. 82). Watford believes the Winger affidavit, which was filed in

Winger’s own Section 1983 action in support of his motion for preliminary injunction,

evidences Dr. Newbold’s propensity for concealing information from and deceiving

inmates because, in that case, he retired before fixing Winger’s crown. The affidavit is

irrelevant to this case, however, as it has no bearing on whether Dr. Newbold knew about

and disregarded Watford’s cavity. See Fed. R. Evid. 401 (“Evidence is relevant if (a) it has

any tendency to make a fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action.”). Thus, Watford’s Motion

for Leave to Supplement Opposition to District Court’s Sua Sponte Summary Judgment

On The Merits Order (Doc. 82) is denied.

After again reviewing the evidence and the parties’ arguments, the Court

maintains its prior position that summary judgment is warranted in favor of

Dr. Newbold. The only remaining claim in this case is Watford’s claim of deliberate

indifference against Dr. Newbold for fraudulently concealing his alleged cavity from

March 17, 2014 to May 23, 2016. Watford has failed to put forth any evidence

demonstrating that Dr. Newbold was the dentist who performed his biennial exam in

2014. Instead, the only evidence in the record is that the exam was performed by

Dr. Stroh. Thus, regardless of whether Watford actually had a cavity on tooth #31, Dr.

Newbold cannot have been personally responsible for concealing the cavity if he did not

discover it until May 23, 2016. And while Watford maintains that Dr. Newbold reviewed

his dental records several times prior to May 23, 2016 (see Doc. 30 at p. 4; Doc. 43 at p. 44),

there is no mention in the records of a cavity on tooth #31 prior to that date. Accordingly,

Dr. Newbold could not have had personal knowledge of any cavity such that he

fraudulently concealed it until May 23, 2016. With no proof of personal involvement by

Dr. Newbold in the alleged concealment of the cavity, Watford’s claim must fail. See Alejo

v. Heller, 328 F.3d 930, 936 (7th Cir. 2003) (to be held liable in a Section 1983 action, an

individual must have personally caused or participated in the alleged unconstitutional

actions).

Motion to Reconsider

Watford also asks the Court to reconsider its order granting summary judgment

on the remaining claims because Watford failed to exhaust his administrative remedies

before filing suit (Doc. 68). Watford argues that his May 24, 2016 grievance properly

grieved a continuing violation; therefore, he did not need to file a separate grievance with

regard to Dr. Newbold and Dr. Kaja’s refusal to treat the cavity.

Motions to reconsider an interlocutory order are properly brought pursuant to

Rule 54(b) of the Federal Rules of Civil Procedure, which provides that an order

adjudicating fewer than all the claims among the parties “may be revised at any time”

before the entry of a final judgment. FED. R. CIV. P. 54(b). Motions to reconsider under

Rule 54(b) are judged by largely the same standard as motions to alter or amend a

judgment under Rule 59(e) and serve a limited function: to correct manifest errors of law

or fact. See Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987).

“A manifest error is not demonstrated by the disappointment of the losing party.”

Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quotation omitted). A

motion to reconsider is only proper where the Court has misunderstood a party, where

the Court has made a decision outside the adversarial issues presented to the Court by

the parties, where the Court has made an error of apprehension (not of reasoning), where

a significant change in the law has occurred, or where significant new facts have been

discovered. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.

1990). “Such problems rarely arise and the motion to reconsider should be equally rare.”

Id. at 1192 (citation omitted).

The continuing violation doctrine applies when the plaintiff could not reasonably

be expected to perceive the alleged violation before the limitations period has run, or

when the violation only becomes apparent in light of later events. Savory v. Lyons, 469

F.3d 667, 672 (7th Cir. 2006). “The continuing violation doctrine is also applicable when

the state actor has a policy or practice that brings with it a fresh violation each day.” Id.

“In order to exhaust their remedies, prisoners need not file multiple, successive

grievances raising the same issue (such as prison conditions or policies) if the

objectionable condition is continuing.” Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013)

Here, the Court has not made a manifest error of law because the continuing

violation doctrine does not apply. Watford’s May 24, 2016 grievance complained about

the concealment of his cavity from his biennial exam in 2014 to May 23, 2016, not any

failure to treat it. He also was not complaining about any ongoing policy that brought “a

fresh violation each day.” Watford confirmed as much in his letter to Grievance Officer

when he said “I am not complaining about what took place on May 23, 2016. I am

complaining about what took place on or about April or May 2014 concerning dental staff

diagnosing me with a cavity but not informing me about it.” (Doc. 1-1 at p. 9). Because

Watford was not alleging a continuing violation, the doctrine has no application here.

Watford’s motion to reconsider is denied.

CONCLUSION

For these reasons, the Motion to Reconsider filed by Plaintiff Marlon Watford

(Doc. 68) is DENIED, and the Court GRANTS judgment as a matter of law in favor of

Defendant Dr. Steven Newbold pursuant to Federal Rule of Civil Procedure 56(f).

Because no injunctive relief was awarded, Defendant Warden of Menard is DISMISSED.

Plaintiff Marlon Watford shall recover nothing, and the Clerk of Court is DIRECTED to

enter judgment accordingly and close this case.

IT IS SO ORDERED.

DATED: November 27, 2019

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NANCY J. ROSENSTENGEL |

Chief U.S. District Judge

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