Burnett v. Chapman

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TERRY BURNETT, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00628-SMY

)

NATHAN CHAPMAN, )

DMD ANDY, )

JILL L. MARTIN, )

WEXFORD HEALTH SOURCES, INC, )

LOUIS SHICKER and )

MICHELLE NEESE, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Terry Burnett, an inmate of the Illinois Department of Corrections (“IDOC”) who

is currently incarcerated at Lincoln Correctional Center, brings this action pursuant to 42 U.S.C.

§ 1983 for alleged deprivations of his constitutional rights related to inadequate dental care while

at Robinson Correctional Center. He seeks monetary and injunctive relief.1

This case is now before the Court for preliminary review of the Amended Complaint.

Under Section 1915A, the Court is required to screen prisoner complaints to filter out non-

meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a Complaint that is legally

frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money

damages from a defendant who by law is immune from such relief must be dismissed. 28 U.S.C.

1 The original Complaint was dismissed without prejudice for failure to state a claim on preliminary screening under

28 U.S.C. § 1915A. (Doc. 6).

§ 1915A(b). At this juncture, the factual allegations are liberally construed. Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Amended Complaint

Plaintiff makes the following allegations in the Amended Complaint (Doc. 13): On

December 26, 2018, Plaintiff began having dental discomfort due to a broken tooth and loss of a

filling. (Doc. 13, p. 12). Plaintiff was seen by Defendant Dr. Chapman on January 5, 2019, who

placed a temporary filling. (Id., p. 13). The temporary filling fell out on January 15, 2019, and

Plaintiff was seen by Dr. Chapman on February 1. (Id, p. 14). Dr. Chapman told Plaintiff the

tooth was infected, prescribed antibiotics and pain medication, and scheduled him for a tooth

extraction which was performed on February 15, 2019. (Id.).

On February 19, 2019, Plaintiff was seen by a nurse who called Defendant Martin, a dental

nurse. (Id., p. 15). Martin told her it was a sinus infection or problem. Plaintiff was given more

pain medication. (Id.).

Plaintiff was seen again at the Health Care Unit on February 26, 2019, given antibiotics

and pain medication, and put on the dental list. On March 5, 2019, a piece of tooth or bone

dislodged from the area of the extracted tooth and Martin gave Plaintiff gauze to help stop the

bleeding. (Id., p. 16). Other pieces fell out or he removed them himself. (Id., pp. 16-17).

Plaintiff saw Martin and Defendant Andy, a dental assistant on May 25, 2019. (Id., p. 17).

He told them the pain had subsided and they told him he was free to leave. (Id.). Plaintiff asked

about a referral to an outside orthodontist and they told him it would have to be approved by the

Care Review Committee and Wexford’s Collegial Board. (Id.). They also told him such approval

was unlikely.

Based on the allegations in the Amended Complaint, the Court finds it convenient to

designate the following Count in this pro se action:

Count 1: Eighth Amendment claim for deliberate indifference to a serious

medical need against Dr. Chapman, Andy, Martin, Shicker and

Wexford.

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. Any other claim that is mentioned in the

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

prejudice as inadequately pled under the Twombly pleading standard.2

Discussion

Deliberate indifference to serious medical needs of prisoners may constitute cruel and

unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

To state a claim, an inmate must adequately allege that: (1) he suffered from an objectively serious

medical need; and (2) state officials acted with deliberate indifference to the prisoner’s medical

need, which is a subjective standard. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff has

adequately pled that he suffered from an objectively serious medical need; a broken tooth and

subsequent infection.

Plaintiff alleges that Dr. Chapman chose to give him a temporary filling instead of

extracting his tooth despite knowing extraction was required. A doctor's choice of the “easier and

less efficacious treatment” for an objectively serious medical condition can constitute deliberate

indifference for purposes of the Eighth Amendment. Berry v. Peterman, 604 F.3d 435, 441 (7th

Cir. 2010). Plaintiff has therefore stated a claim against Dr. Chapman.

2 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”).

Plaintiff has failed to state a viable claim against Shicker or Neese. A governmental official

may not be held liable under § 1983 for the unconstitutional conduct of a subordinate because the

doctrine of respondeat superior is inapplicable in this context. Ashcroft v. Iqbal, 556 US. 662,

676 (2009). Liability requires personal involvement in or personal responsibility for the

deprivation of a constitutional right. Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir. 2009)

(citation omitted). Plaintiff does not describe any personal involvement by Neese, the Acting

Warden of Robinson, that would support individual liability. Because there is no grounds for

injunctive relief (as discussed below), there is also no basis for liability in her official capacity.

Although Shicker is Medical Director for IDOC, as previously noted, he cannot be held

responsible on the basis of respondeat superior or supervisory liability. Additionally, although

Plaintiff alleges he sent a letter to Shicker regarding his treatment, this does not suffice to show

personal involvement. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (state officials

“do not have a free-floating obligation to put things to rights,” simply sending an official a letter

does not expose them to Section 1983 liability for failing to respond, and IDOC officials are

entitled to delegate to the prison’s medical staff the provision of adequate care).

Plaintiff fails to allege any acts suggesting deliberate indifference by Defendants Martin or

Andy. He claims Andy was present at the May 25, 2019 consultation when Plaintiff told him and

Martin the pain had subsided. Simply informing Plaintiff that a request to see an outside

orthodontist would be subject to several reviews and would likely be denied is not deliberate

indifference, especially when Plaintiff’s condition had resolved. Similarly, Plaintiff’s allegations

are insufficient to support a deliberate indifference claim against Martin. Plaintiff merely states

that Martin told another nurse that plaintiff had a sinus infection or issue during a phone call. There

are no allegations suggesting that Martin knew or had reason to know Plaintiff’s tooth was infected

at that time. As such, the subjective component of the claim has not been adequately pled. See

Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016).

Plaintiff also fails to state a claim against Wexford. To state a claim against a corporation

contracting with a state to provide prison medical services, a plaintiff must demonstrate that the

wrongdoers acted pursuant to an unconstitutional policy or custom, and that the policy was the

moving force behind the constitutional violation. Shields v. Ill Dep’t of Corr., 746 F.3d 782, 790

(7th Cir. 2014); Perez v. Fenoglio, 792 F.3d 768, 780 & n. 5 (7th Cir. 2015); Gable v. City of

Chicago, 296 F.3d 531, 537 (7th Cir. 2002). Plaintiff’s sole allegation against Wexford is that it

was “responsible for establishing a uniform written procedure for dental services.” (Doc. 13, p.

3). There is no allegation that any of the policies were unconstitutional, or that they were

connected with his alleged injuries.

Finally, although Plaintiff’s claim against Dr. Chapman survives screening for monetary

damages, he has not pled any facts to suggest entitlement to the injunctive relief he seeks. Plaintiff

was transferred to Lincoln Correctional Center at approximately the time he filed the Amended

Complaint. (Doc. 11). His request for prospective injunctive relief is therefore rendered moot.

See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996). If Plaintiff believes he is still receiving

constitutionally deficient care at Lincoln, he must file a new lawsuit raising that claim.

Motion for Recruitment of Counsel

Plaintiff has filed a renewed Motion for Recruitment of Counsel in which he states counsel

is necessary because the case involves legal terminology and he may not be able to obtain work

history discovery due to security restrictions. (Doc. 14).3 It appears that Plaintiff has made

3 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.

reasonable efforts to obtain counsel on his own. That said, Plaintiff’s pleadings indicate that he

can read and write in English effectively and is competent to pursue this litigation at this juncture

without representation. Plaintiff may refile his motion once discovery has commenced if he

encounters significant difficulty.

Disposition

For the foregoing reasons, all claims against DMD Andy, Jill L. Martin, Wexford Health

Sources, Inc., Louis Shicker and Michelle Neese are DISMISSED without prejudice. The Clerk

of Court is DIRECTED to TERMINATE these defendants as parties in CM/ECF. Plaintiff’s

Motion for Recruitment of Counsel (Doc. 14) is DENIED without prejudice.

The Clerk of Court shall prepare for Defendant Chapman: (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 Amended Complaint, and this

Memorandum and 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 Defendant to 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.

Defendant is ORDERED to timely file an appropriate responsive pleading to the Amended

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

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

Merits 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, regardless of

whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).

The Clerk of Court is DIRECTED to ENTER the standard qualified protective order

pursuant to the Health Insurance Portability and Accountability Act.

Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk of Court

and the opposing party of any address changes; 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. FED. R. CIV. P. 41(b).

IT IS SO ORDERED.

DATED: JUNE 22, 2020

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

Notice

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

and serve the Defendant with a copy of your Amended Complaint. After service has been

achieved, the Defendant will enter his/her appearance and file an Answer to the Amended

Complaint. It will likely take at least 60 days from the date of this Order to receive the Defendant’s

Answer, but it is entirely possible that it will take 90 days or more. When the Defendant has filed

an Answer, 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 the Defendant

before filing any motions, to give the Defendant notice and an opportunity to respond to those

motions. Motions filed before Defendant’s 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.