Johnson v. Overall

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KENNETH JOHNSON, )

)

Plaintiff, )

)

vs. ) Case No. 3: 17-CV-460-MAB

)

LILLIAN OVERALL and JOHN )

BALDWIN, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

Currently pending before the Court are the motions for summary judgment filed

by Defendants Dr. Lillian Overall and John Baldwin (Docs. 77, 85), as well as, the Motion

to Add New Material (Doc. 87) and the “Motion Requesting Judicial Recognition &

Decisions of Q’s 12 Points, Conclusion & Table of Authorities” (Doc. 91) filed by Plaintiff

Kenneth Johnson. For the reasons stated below, the motions for summary judgment are

granted and Plaintiff’s motions are denied.

PROCEDURAL BACKGROUND

Plaintiff Kenneth Johnson filed this pro se civil rights action pursuant to 42 U.S.C.

§1983 in May 2017 (Doc. 1). Plaintiff alleged that that Dr. Lillian Overall, the prison dentist

at Vandalia Correctional Center, mishandled the extraction of his tooth, which left

Plaintiff in constant pain. He further alleged that surgery to correct the problem was

being delayed. He also alleged that the Illinois Department of Corrections (“IDOC”) takes

“short cuts” in providing dental and health care to inmates because of lack of money,

which led to Plaintiff incurring a lengthy delay in obtaining treatment to relive his painful

condition. Following a threshold review of the complaint pursuant to 28 U.S.C. § 1915A,

Plaintiff was permitted to proceed on an Eighth Amendment deliberate indifference

claim against Dr. Overall and John Baldwin in his official capacity as the Director of the

IDOC (Doc. 5).

Dr. Overall filed her motion for summary judgment on the merits of Plaintiff’s

claim on November 29, 2018 (Doc. 77), and Director Baldwin filed his on December 26,

2018 (Doc. 85). Plaintiff then filed his “Motion to Add New Material” on December 26,

2018 (Doc. 87), and his “Motion Requesting Judicial Recognition & Decisions of 12 Points,

Conclusion & Table of Authorities” on January 22, 2019 (Doc. 91).

I. MOTION TO ADD NEW MATERIAL (Doc. 87)

On December 12, 2018, Plaintiff filed a Motion for Leave to File Amended

Complaint (Doc. 83). It was denied the next day because Plaintiff did not submit his

proposed amended complaint (Doc. 84). Plaintiff then filed his “Motion to Add New

Material” on December 26, 2018 (Doc. 87), which is presently before the Court. Plaintiff

states that he is trying “to name Wexford and their dental policy” and “add Wexford and

their dental policy as part of my paperwork I [already] have on file in my case, not to

submit an entire new complaint” (Doc. 87).

It appears to the Court Plaintiff is trying make a piecemeal amendment to his

complaint in order to add Wexford as a new Defendant in this case. However, the Court

does not accept piecemeal amendments or supplements to a complaint. See SDIL-LR 15.1.

Furthermore, Plaintiff’s attempt to add a new defendant comes eight months after his

deadline for doing so expired (see Doc. 38), and Plaintiff did not provide any explanation

as to why he did not attempt to add Wexford sooner (see Doc. 87). See Adams v. City of

Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014) (citing Alioto v. Town of Lisbon, 651 F.3d 715,

719 (7th Cir. 2011) (holding that after the deadline for amending the pleadings has

elapsed, the court should first consider whether “good cause” for the amendment exists

under Rule 16(b)(4) before considering whether justice requires leave to amend under

Rule 15). Allowing Plaintiff to amend in order to pursue a new defendant at this point

would require reopening discovery and would further protract this litigation, prejudicing

both the existing Defendants as well as the Court. Soltys v. Costello, 520 F.3d 737, 743 (7th

Cir. 2008) (“[E]leventh hour additions . . . are bound to produce delays that burden not

only the parties to the litigation but also the judicial system and other litigants.”) (citation

omitted).

For these reasons, Plaintiff’s “Motion to Add New Material” is denied.

II. “MOTION REQUESTING JUDICIAL RECOGNITION . . . “ (Doc. 91)

In this motion, Plaintiff poses twelve questions to the Court, such as whether

Defendants’ conduct was intentional, willful, malicious, or reckless? Or whether

Defendants’ conduct was reasonable, careful, and conscientious? Plaintiff then goes on to

offer his conclusion that Defendants were negligent and failed to provide adequate

medical treatment, post-treatment, referrals, physical therapy, and rehab. Plaintiff then

offers his “Table of Authorities,” which references a number of seminal cases on the issue

of deliberate indifference to a serious medical need, such as Estelle v. Gamble, 429 U.S. 97

(1976) and Farmer v. Brennan, 511 U.S. 825 (1994).

Based on the contents of the motion, the Court opts to construe it as Plaintiff’s

response in opposition to both Defendants’ motions for summary judgment. It is

therefore denied as moot.

III. DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Docs. 77, 85)

A. FACTUAL BACKGROUND

The facts recited here are undisputed unless otherwise noted.

Plaintiff was an inmate in the IDOC incarcerated at Vandalia Correctional Center

(“Vandalia”) (Doc. 79-1, pp. 8–9). Defendant Lillian Overall was a dentist employed at

Vandalia, and Defendant John Baldwin was the director of the IDOC (Doc. 79-2, p. 1).

In August 2016, Plaintiff requested a partial denture for his upper arch (Doc. 79-2,

p. 2). Dr. Overall determined that a partial denture was not possible because periodontal

disease present in Plaintiff’s remaining upper arch teeth made them incapable of

supporting a partial (Id.; Doc. 79-3, p. 2). Dr. Overall recommended extracting Plaintiff’s

remaining teeth in his upper arch and then fitting him for a total upper arch denture (Doc.

79-1, pp. 11–12; Doc. 79-2, p. 2; Doc. 79-3, p. 2). However, Plaintiff refused to have his

teeth extracted when he returned to the dental unit on October 14, 2016, for the procedure

(Doc. 79-1, p. 12; Doc. 79-2, p. 2; Doc. 79-3, p. 2).

Plaintiff returned to Dr. Overall on March 21, 2017, again complaining of

continued pain (Doc. 79-2, p. 2). The dental notes indicate that there was severe decay in

all remaining upper teeth and they could not be restored (Doc. 79-3, p. 2). Plaintiff was

scheduled to have his remaining upper teeth extracted on April 7, 2017 (Doc. 79-3, pp. 2,

8). Plaintiff agreed to the extraction (Doc. 79-3, p. 8), and on April 7, 2017, Dr. Overall

extracted six teeth as planned (Doc. 79-3, p. 2). Plaintiff testified that all of the teeth came

out easily, with no problems, until Dr. Overall got to the last one or two teeth (Doc. 79-1,

pp. 21, 26). Plaintiff claims a tooth (perhaps two) broke and Dr. Overall had difficulty

getting all of the pieces out (Id. at pp. 21, 26–29). However, he never saw the teeth that he

alleges Dr. Overall broke during the extraction (Id. at p. 27). Following the extractions,

Dr. Overall gave Plaintiff a two day lay-in pass to restrict him from his work detail and

provided him with Motrin to manage his pain (Doc. 79-1, pp. 32–33; Doc. 79-3, pp. 5, 9).1

Five days later, on April 12, 2017, Plaintiff retuned to Dr. Overall for a follow-up

visit due to continued pain in his mouth (Doc. 79-1, pp. 22; Doc. 79-2, p. 2). Dr. Overall

examined Plaintiff, determined that a bone spicule was present in Plaintiff’s mouth,

removed it,2 and then provided him with an additional supply of Motrin 400 mg (Doc.

79-2, p. 2; Doc. 79-3, pp. 3, 6).

After Plaintiff filed a grievance on April 16th regarding his dental care, Dr. Overall

met with him three days later and explained to him that his extraction site was healing

normally, and any discomfort he felt was likely due to the “occlusion between his bottom

1 More specifically, she prescribed 30 tablets of Motrin 400mg, and instructed Plaintiff to take one to two

tablets every 4–6 hours as needed for pain (Doc. 79-3, p. 5).

2 A bone spicule or spur is a small, sharp fragment of bone that works its way to the surface of the gums

following a tooth extraction. They are common, particularly after a difficult tooth extraction, and treatable

through a visit to the dentist. Emily Boge, Finding a Bone Spur in Gum Tissue: Here’s What to Do, COLGATE,

https://www.colgate.com/en-us/oral-health/procedures/tooth-removal/bone-spur-in-gum-tissue-

why-what-to-do-0818- (last visited March 13, 2020). Accord Doc. 79-2, p. 2 (“The presence of bone spicules

following extraction is a normal finding, especially when the patient, like Plaintiff, suffers from severe

periodontal disease, including bone loss.”).

teeth and top gums” because he had no teeth on his upper arch (Doc. 79-2, pp. 2-3; Doc.

79-3, pp. 1, 3).3 She further explained to him that placement of an upper denture would

likely alleviate any discomfort he had, and that he was already scheduled to begin the

process of fabricating and placing a denture (Doc. 79-2, pp. 2-3; Doc. 79-3, pp. 1, 3). She

also gave him additional pain medication (Doc. 79-3, p. 1). A week later, on April 24, 2017,

Plaintiff returned to see Dr. Overall to have a cavity on a lower tooth repaired (Doc. 79-

3, p. 3). Dr. Overall also noted that Plaintiff’s upper gum was bleeding because a tooth

was coming into contact with one of the extraction sites (Id.). She once again renewed his

prescription for Motrin (Id.).

Plaintiff’s gums had to properly heal before he could get fitted for the upper

denture (Doc. 79-1, p. 38). The dental records show that Plaintiff returned to Vandalia’s

dental unit on July 7, 2017—three months after his teeth were extracted—to begin the

process of making the upper arch denture (Doc. 79-2, p. 3). The process of fabricating and

placing a complete upper denture continued through the summer of 2017 (Id.). While he

waited for his denture, it was painful to eat (Doc. 79-1, p. 40). Plaintiff cannot recall when

he received his denture, but believes it was in the beginning of 2018 (Id. at p. 54).

The denture is meant to be worn at all times, including while eating, although it

does not have to be worn while sleeping (Doc. 79-2, p. 3; see also Doc. 79-1, p. 44–45).

Although instructed to keep his denture in, Plaintiff does not always do so (Doc. 79-1, pp.

3 Occlusion is the way the teeth meet when the lower jaw and upper jaw come together. Vickie Parrish

Foster, An Overview of Dental Anatomy: Occlusion, https://www.dentalcare.com/en-us/professional-

education/ce-courses/ce500/occlusion (last visited March 13, 2020).

44–45). Plaintiff testified that, he still has pain in his upper gums when he chews food

without his dentures; he thinks there is still a piece of bone in there and says he can feel

it (Id. at pp. 41–42). But he never feels the pain if he is wearing the denture (Id. at p. 44).

Plaintiff is able to buy pain medication from the commissary as needed (Id. at p. 45).

Plaintiff testified at his deposition in October 2018 that the denture fits “fine” (Doc. 79-1,

p. 45). He has no pain in his upper gums or jaw when speaking normally (Id. at p. 48).

And Dr. Overall never ignored his complaints of pain or denied him pain medication (Id.

at p. 53).

With respect to Director John Baldwin, Plaintiff testified that he is suing Baldwin

because he is Dr. Overall’s “boss” and should be held accountable for her alleged

deliberate indifference (Doc. 79-1, pp. 60, 62). Plaintiff has never met Director Baldwin or

had any contact with him (Id. at p. 60; Doc. 86-3, pp. 1-2). Plaintiff has no knowledge of

the Department of Corrections’ overall budget or how much money is spent on dental

care for inmates (Doc. 79-1, p. 59; Doc. 86-3, pp. 2–3). He has no knowledge of any official

IDOC policy or procedure that encourages its healthcare providers to take short cuts to

save money (Doc. 79-1, pp. 59–60; Doc. 86-3, p. 3; Doc. 86-4, pp. 7-10). Director Baldwin

did not sign off on any of Plaintiff’s appeals to the Administrative Review Board (Doc.

86-5, p. 1). And Plaintiff has nothing to show that Director Baldwin knew about his

medical issues before he filed this lawsuit (Doc. 79-1, p. 61).

B. DISCUSSION

Summary judgment is proper only if the movant shows that there is no genuine

issue as to any material fact and they are entitled to judgment as a matter of law. FED. R.

CIV. P. 56(a). “Factual disputes are genuine only if there is sufficient evidence for a

reasonable jury to return a verdict in favor of the non-moving party on the evidence

presented, and they are material only if their resolution might change the suit’s outcome

under the governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013) (citation

and internal quotation marks omitted). In deciding a motion for summary judgment, the

court must view the evidence in the light most favorable to, and draw all reasonable

inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735

F.3d 962, 965 (7th Cir. 2013) (citation omitted).

The Eighth Amendment’s proscription against cruel and unusual punishment

imposes an obligation on states “to provide adequate medical care to incarcerated

individuals.” Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063, 1072 (7th Cir. 2012) (citing

Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “Prison officials violate this proscription when

they act with deliberate indifference to the serious medical needs of an inmate.” Holloway,

700 F.3d at 1072 (citations omitted). To succeed on a claim for deliberate indifference, a

plaintiff must demonstrate that they suffered from an “objectively, sufficiently serious”

medical condition and that the defendant acted with a “sufficiently culpable state of

mind.” Id.

Neither Dr. Overall nor Director Baldwin dispute that Plaintiff was suffering from

a serious medical condition (see Docs. 77, 85). Therefore, the only question for the Court

is whether Dr. Overall and Director Baldwin acted with deliberate indifference to

Plaintiff’s serious dental needs.

“A prison official is deliberately indifferent only if he ‘knows of and disregards an

excessive risk to inmate health or safety.’” Whiting v. Wexford Health Sources, Inc., 839 F.3d

658, 662 (7th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In other

words, “[t]he defendant must know of facts from which he could infer that a substantial

risk of serious harm exists, and he must actually draw the inference.” Whiting, 839 F.3d

at 662 (quoting Farmer, 511 U.S. at 837). “This subjective standard requires more than

negligence and it approaches intentional wrongdoing.” Holloway, 700 F.3d at 1073

(citation omitted). It is “something akin to recklessness.” Giles v. Godinez, 914 F.3d 1040,

1049 (7th Cir. 2019), cert. denied, 140 S. Ct. 50 (2019) (quoting Arnett v. Webster, 658 F.3d

742, 751 (7th Cir. 2011).

1. John Baldwin

Director Baldwin is entitled to summary judgment. By Plaintiff’s own admission,

he is seeking to hold Director Baldwin liable based on a theory of respondeat superior,

meaning that he is liable for Dr. Overall’s misconduct simply because he is her superior

(Doc. 79-1, pp. 60, 62). However, an individual cannot be held liable under § 1983 merely

based on their supervisory role of others under a theory of respondeat superior or vicarious

liability. Lennon v. City of Carmel, Indiana, 865 F.3d 503, 507–08 (7th Cir. 2017) (“[T]here is

no vicarious liability in a suit under section 1983.”); T.E. v. Grindle, 599 F.3d 583, 588 (7th

Cir. 2010) (“[T]here is no theory of respondeat superior for constitutional torts.”) (citation

omitted). Plaintiff also admitted and there is no evidence to suggest that Director Baldwin

knew about his dental issues before he filed this lawsuit (Doc. 79-1, p. 61; Doc. 86-5). See

Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (supervisors can be held

liable if they are “personally responsible for the deprivation of the constitutional right,”

meaning they “know about the conduct and facilitate it, approve it, condone it, or turn a

blind eye for fear of what they might see.”). Finally, Plaintiff admitted that he knew

nothing about the IDOC’s budget for inmate dental care or any policy or procedure that

encouraged dental providers to take short cuts to save money (Doc. 79-1, pp. 59–60; Doc.

86-3, p. 3; Doc. 86-4, pp. 7-10). See Glisson v. Indiana Dep’t of Corr., 849 F.3d 372, 381 (7th

Cir. 2017) (en banc) (officials can be sued in their official capacity under § 1983 if the

constitutional deprivation was caused by official policy or practice).

Consequently, there is no basis for holding Director Baldwin liable for deliberate

indifference under § 1983 and he is entitled to summary judgment.

2. Dr. Lillian Overall

When it comes to medical professionals, the deliberate indifference standard has

been described as the “professional judgment” standard. Sain v. Wood, 512 F.3d 886, 894

(7th Cir. 2008). Treatment decisions are “presumptively valid” and entitled to deference

so long as they are based on professional judgment and do not go against accepted

professional standards. Johnson v. Rimmer, 936 F.3d 695, 707 (7th Cir. 2019) (citation

omitted); Rasho v. Elyea, 856 F.3d 469, 476 (7th Cir. 2017); Roe v. Elyea, 631 F.3d 843, 859

(7th Cir. 2011). “By definition a treatment decision that is based on professional judgment

cannot evince deliberate indifference because professional judgment implies a choice of

what the defendant believed to be the best course of treatment.” Rasho, 856 F.3d at 476

(citation omitted). See also Roe, 631 F.3d 843 at 859 (“[I]t is implicit in the professional

judgment standard itself . . . that inmate medical care decisions must be fact-based with

respect to the particular inmate, the severity and stage of his condition, the likelihood and

imminence of further harm and the efficacy of available treatments.”) “A medical

professional acting in his professional capacity may be held to have displayed deliberate

indifference only if the decision by the professional is such a substantial departure from

accepted professional judgment, practice, or standards, as to demonstrate that the person

responsible actually did not base the decision on such a judgment.” Rasho, 856 F.3d at 476

(citation omitted). See also Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (“A medical

professional is entitled to deference in treatment decisions unless ‘no minimally

competent professional would have so responded under those circumstances’” (quoting

Collignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998))).

The Court previously determined during the threshold review of Plaintiff’s

complaint that Dr. Overall’s actions in extracting Plaintiff’s teeth did not amount to

unconstitutional deliberate indifference (Doc. 5). That remains true. The evidence before

the Court suggests that Dr. Overall’s decision to extract Plaintiff’s teeth was based on

professional judgment after examining Plaintiff and determining that a full upper

denture was his only option because he had periodontal disease in his remaining teeth

that made it impossible for them to support a partial denture. There is nothing in the

record that suggests her treatment decision was blatantly inappropriate. Furthermore,

while Plaintiff believes Dr. Overall somehow botched the extraction of his final two teeth,

there is no evidence to support his belief; it is complete speculation. Bass v. Joliet Pub.

Sch.Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014) (“Speculation is no substitute for

evidence at the summary judgment stage.”); Stephens v Erickson, 569 F.3d 779, 786 (7th

Cir. 2009) (noting that “inferences relying on mere speculation or conjecture will not

suffice”). Not all tooth extractions are simple and straightforward; some teeth can be

quite difficult to remove. And diseased teeth can be fragile and prone to breaking during

the extraction process.4 Just because a tooth breaks during the extraction procedure does

not mean the dentist provided substandard or constitutionally inadequate care.

Furthermore, the evidence shows that following the extraction, Dr. Overall

provided Plaintiff with pain medication and a lay-in permit so that he would be exempt

from working during his initial recovery. When he complained of continuing pain, she

promptly responded and removed the offending bone spicule and gave Plaintiff

additional pain medication. When he continued to complain of pain, she promptly

responded and saw him twice more during the month of April. She examined him and

determined that no bone spicule remained and the extraction site was healing at a normal

rate. Dr. Overall gave Plaintiff more pain medication and counseled him about his

discomfort and explained it was due to his bottom teeth coming in contact with his top

gums where there were no longer any teeth. She further explained that the upper denture

would likely alleviate this pain, which is in fact what happened. Plaintiff testified that he

does not experience any pain when he wears his denture. The only time Plaintiff

experiences pain is when he chooses to chew food without his upper arch denture in place.

To the extent there was a delay in Plaintiff receiving his denture, there is nothing in the

44 Donna Pleis, When Surgical Extraction of Teeth is Necessary, COLGATE https://www.colgate.com/en-

us/oral-health/procedures/tooth-removal/when-surgical-extraction-of-teeth-is-necessary-0215.

record that suggests it was Dr. Overall’s fault or something that she could control but

opted to ignore.

In sum, the evidence in the record suggests that the pain Plaintiff endured in

having his teeth extracted and waiting to receive his denture was completely normal and

not the result of any deliberate indifference on Dr. Overall’s part. She is therefore entitled

to summary judgment.

CONCLUSION

Plaintiff’s “Motion to Add New Material” (Doc. 87) is DENIED.

Plaintiff’s “Motion Requesting Judicial Recognition & Decisions of Q’s 12 Points,

Conclusion & Table of Authorities” (Doc. 91) is DENIED as moot and construed as

Plaintiff’s response in opposition to Defendants’ motions for summary judgment.

The motions for summary judgment filed by Defendants Dr. Lillian Overall and

John Baldwin (Docs. 77, 85) are GRANTED. Plaintiff’s claim against them is DISMISSED

with prejudice and judgment will be entered in their favor.

There being no claims or Defendants remaining in this action, the Clerk of Court

is DIRECTED to enter judgment and close this case on the Court’s docket.

IT IS SO ORDERED.

DATED: March 13, 2020

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge