The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEROME DUNN, )
)
Plaintiff, )
)
vs. ) Case No. 19−cv–321−SMY
)
VANDALIA CORRECTIONAL )
CENTER, )
IDOC, )
J. GAPE, )
S. WAGGONER, and
DENTIST,
Defendants.
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Jerome Dunn, a former inmate of the Illinois Department of Corrections (“IDOC”)
previously incarcerated at Vandalia Correctional Center (“Vandalia”), brings this action pursuant
to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. Plaintiff claims that when
he was housed at Vandalia, officials were deliberately indifferent to his serious medical condition
(tooth decay and pain). In connection with his claims, Plaintiff names Vandalia Correctional
Center, the Illinois Department of Corrections, J. Gape (Counselor, Vandalia Correctional Center),
S. Waggoner (Warden, Vandalia Correctional Center), and Dentist (hereinafter, Jane Doe).1
The Consolidated Complaint2
Plaintiff makes the following allegations in his Consolidated Complaint (Doc. 12): From
1 To facilitate the orderly progress of this action going forward, the Clerk of the Court will be directed to
rename the unknown Dentist as follows: Jane Doe (Dentist, Vandalia Correctional Center).
2 Case No. 19-cv-330-SMY was recently consolidated with the instant action. (Doc. 11). The Consolidated
Complaint includes the Complaint that was filed in this action and the Complaint that was filed in 19-cv-
330-SMY. (See Doc. 12).
approximately July 2016 through July 2018, Plaintiff experienced persistent, acute pain because
one or more of his teeth were badly decayed and required extraction. The pain was so severe
Plaintiff could not eat and would “cry [himself] to sleep.” Dental x-rays revealed several decaying
teeth, including a decaying wisdom tooth. Plaintiff was prescribed “800 mg. pain pills” and was
placed on a waiting list for further treatment. He remained on the waiting list for at least 7 1/2
months. As his parole date approached, officials told Plaintiff his condition was not an emergency
and that he would need to seek treatment after being released from IDOC custody. During this
time, Plaintiff submitted numerous grievances and written requests for dental treatment. He also
complained to Waggoner and Jane Doe in person, and his wife contacted Waggoner on his behalf.
Waggoner told Plaintiff to submit a grievance and said nothing could be done until he was released
from confinement. Jane Doe put Plaintiff on the waiting list and told him that nothing else could
be done because he was too close to being paroled.
Based on the allegations of the Consolidated Complaint, the Court designates a single
Count.
Count 1: Eighth Amendment claim against Defendants for deliberate
indifference to a serious medical need regarding Plaintiff’s dental
care.
The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. This designation does not constitute an
opinion regarding its merit. Any other intended claim that has not been recognized by the Court
is considered dismissed without prejudice as inadequately pleaded under the Twombly pleading
standard.3
Discussion
3 An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state
a claim that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Eighth Amendment prohibits the wanton and unnecessary infliction of pain on
incarcerated persons. Farmer v. Brennan, 511 U.S. 825, 832 (1994). This can include the denial
of necessary dental care. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). An inmate
pursuing an Eighth Amendment claim must establish: (1) a serious medical condition (objective
element); and (2) an official’s deliberate indifference to that condition (subjective element). Id.
According to the Consolidated Complaint, Jane Doe persisted in a course of treatment that
she knew was inadequate and/or ineffective, failed to adequately treat Plaintiff’s pain, and/or
delayed appropriate treatment for non-medical reasons. These allegations are sufficient to allow
Count 1 to proceed as to Jane Doe. See Brown v. Darnold, 505 Fed. App’x. 584 (7th Cir. 2013);
Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012); McGowan v. Hulick, 612 F.3d 636, 640 (7th
Cir.2010); Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005). Count 1 may also proceed against
Waggoner based on the allegation that she ignored Plaintiff’s complaints about constitutionally
inadequate medical care. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015).
However, Count 1 will be dismissed without prejudice as to Counselor Gape, who is not
referenced in the statement of claim. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).
Count 1 also cannot proceed against IDOC or Vandalia Correctional Center because neither entity
may be sued under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66–67 (1989);
Toledo, Peoria & Wester R. Co. v. State of Ill. Dept. of Transp., 744 F.2d 1296, 1298 (7th Cir.
1984). Accordingly, IDOC and Vandalia Correctional Center will be dismissed from the action
with prejudice.
Identification of Unknown Defendants
Plaintiff will have the opportunity to engage in limited discovery to ascertain the identity
of the unknown defendant. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th
Cir. 2009). Warden Waggoner shall respond to discovery aimed at identifying the unknown
defendant. Guidelines for discovery will be set by the undersigned judge. Once the name of the
unknown defendant is discovered, Plaintiff shall file a motion to substitute the newly identified
defendant in place of the generic designations in the case caption and throughout the Consolidated
Complaint.
Motion for Recruitment of Counsel
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 4 and Doc. 14), which is
DENIED.4 Plaintiff did not provide any information regarding his efforts to obtain counsel on his
own, and, with respect to his ability to pursue this action pro se, Plaintiff merely indicates that he
has some high school education. The minimal information provided by Plaintiff does not warrant
the appointment of counsel at this time. Plaintiff’s pleadings demonstrate an ability to relay
information to the Court, and there is no indication that Plaintiff’s level of education is preventing
him from communicating with the Court. At this juncture, the Court is merely concerned with
whether this action can get out of the gate, so to speak. No legal training or knowledge is required
to do this. Therefore, the recruitment of counsel is not warranted at this time, and the motion is
denied. The Court will remain open to the appointment of counsel in the future.
Disposition
IT IS HEREBY ORDERED that the Motion for Recruitment of Counsel (Doc. 4 and Doc.
14) are DENIED.
The Clerk of the Court is DIRECTED to rename the unknown Dentist as follows: Jane
Doe (Dentist, Vandalia Correctional Center).
IT IS FURTHER ORDERED that COUNT 1 shall receive further review as to S.
4 In evaluating Plaintiff’s Motion for Recruitment of Counsel, the Court applies the factors discussed in
Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) and related authority.
Waggoner and Jane Doe. J. Gape is DISMISSED from the Complaint without prejudice for
failure to state a claim for relief. Vandalia Correctional Center and the Illinois Department
of Corrections are DISMISSED from the action with prejudice. See 28 U.S.C. § 1915(e)(2)(B).
The Clerk of the Court is DIRECTED to terminate J. Gape, Vandalia Correctional Center,
and the Illinois Department of Corrections from the docket.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for S. Waggoner: (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
Consolidated Complaint, and this Merit Review Order to Defendant’s place of employment as
identified by Plaintiff. If 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 that Defendant
pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil
Procedure.
If 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.
Service shall not be made on Jane Doe until Plaintiff has identified her by name in a
properly filed motion for substitution of parties. Plaintiff is ADVISED that it is his responsibility
to provide the Court with the name and service address for this individual.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Consolidated Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Administrative Order No. 244, Defendants need only respond to the issues stated
in this Merit Review Order
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, despite the fact
that his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
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: February 6, 2020
s/ 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.