Tidwell v. Asselmeier

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CLEO TIDWELL, )

)

Plaintiff, )

)

vs. ) Case No. 16-cv-41-DWD

)

HARRY HENDERSON, and )

GAIL WALLS, )

)

Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Plaintiff Cleo Tidwell, who is incarcerated at Lawrence Correctional Center, filed

this action on January 14, 2016, alleging violations of his constitutional rights pursuant to

42 U.S.C. § 1983 while he was incarcerated at Menard Correctional Center (“Menard”).

Plaintiff alleges that Defendants Harry Henderson and Gail Walls violated his Eighth

Amendment rights because they were deliberately indifferent to his serious dental needs

by failing to treat Plaintiff’s dental condition in a timely manner or to refer Plaintiff to a

dentist outside of the prison. Now before the Court are Defendants’ motions for summary

judgment (Doc. 312; Doc. 316) to which Plaintiff did not respond.1 For the reasons

delineated below, Defendants’ motions for summary judgment are GRANTED.

1 On August 10, 2017, Plaintiff was sanctioned by the Court with a monetary fine and was barred from

filing any civil pleadings in this District until the sanction is paid. See Tidwell v. Menard C.C., No. 16-cv-384-

SMY (S.D. Ill. Aug. 10, 2017, Doc. 43). Plaintiff appealed, but his appeal was dismissed for failure to pay the

filing fee. Before the dismissal, the Seventh Circuit denied a motion for leave to appeal in forma pauperis due

to Plaintiff’s failure to present a good faith issue that the Court erred in imposing the ban. See Tidwell v.

Clendenin, 7th Cir. Case. No. 17-3020. This filing ban remains in effect. Due to Plaintiff’s inability to respond,

rather than exercise discretion to deem the lack of response as an admission of the merits of the motions

under Local Rule 7.1(c), the Court will review the motions on the merits.

FACTUAL BACKGROUND

Plaintiff Cleo Tidwell was transferred to Lawrence Correctional Center in June

2016. Before being transferred and at all times relevant to his complaint, he was

incarcerated at Menard Correctional Center (“Menard”). Defendant Harry Henderson

was employed as a dentist at Menard from January 2011 to April 2015. Defendant Gail

Walls worked at Menard as the director of nursing from July 2012 to July 2014 and as the

healthcare unit administrator from July 2014 to October 2018. Plaintiff Tidwell alleges

that Defendants Henderson and Walls were deliberately indifferent to his serious medical

needs by delaying treatment of Tidwell’s dental condition and by failing to refer Tidwell

to an off-site dentist.

Tidwell’s dental records indicate a history of periodontal disease, dating back to

1991. (Doc. 313-1, p. 1). Defendant Henderson examined Tidwell on three occasions at

Menard. (Doc. 313-2, p. 1). On July 12, 2013, Henderson met with Tidwell to conduct a

biannual dental examination. (Doc. 313-2, p. 1). Henderson’s notes from that examination

stated that Tidwell “needed one or more teeth extracted” and that he had significant tooth

decay and poor oral hygiene. (Doc 313-2, p. 1). According to an affidavit Henderson

submitted in support of his motion, Henderson also ordered a panoral x-ray, which are

recommended every five years. (Doc. 313-2, p. 1).

On August 23, 2013, Henderson evaluated Tidwell’s partial dental prosthesis.

(Doc. 313-2, p. 2). According to Henderson’s affidavit and Tidwell’s medical records,

Henderson noted during that meeting that fitting an upper and lower partial denture for

Tidwell would be difficult for reasons that include: multiple missing teeth, tissue contact

pressing against the gum tissue above it, and limited ridge clearance between certain

teeth and the gum below. (Doc. 313-2, p. 2; Doc. 313-3, p. 2). Tidwell met with Henderson

again a week later, at which time Henderson told him that, for the best results, he needed

four teeth removed before being fitted for upper and lower partial dentures. (Doc. 313-2,

p. 2; Doc. 313-3, p. 4). Tidwell was unwilling to commit to the tooth extractions at that

time and left without the recommended treatment, indicating that he would write when

he was ready to commit to the treatment plan. (Doc. 313-2, p. 2; Doc. 313-3, p. 4).

After August 30, 2013, Tidwell never contacted Henderson again, nor was he

scheduled on Henderson’s dental call line. (Doc. 313-2, p. 2). Henderson did not examine

or treat Tidwell against after August 2013. (Doc. 313-2, p. 2). Henderson did not prescribe

a dental rinse during any of the three appointments because he determined, in his

judgment, it was not within the scope of treatment for the dental concerns he was

evaluating. (Doc. 313-2, p. 2). Tidwell alleges that he needed teeth cleaning, scaling, and

planing during his appointments with Henderson; however, Henderson did not provide

those procedures because they are performed by dental hygienists, who are responsible

for scheduling their regular dental hygiene appointments at Menard without input from

the dentists. (Doc. 313-2, p. 3).

In connection with this motion for summary judgment, the Court appointed an

expert, D. Douglas Miley, D.M.D., M.S.D., to review Tidwell’s dental records. (Doc. 155).

Dr. Miley was given a list of topics and questions to address, and he identified four viable

treatment options for Tidwell. (Doc. 313-1, p. 1-2). Three of these options included tooth

extractions, and the other option called for regular periodontal cleanings. (Doc. 313-1, p.

1-2). Dr. Miley noted that one possible treatment would include “selected extractions due

to either a poor prognosis or poor tooth position, and fabrication of [upper] and [lower]

partial dentures.” (Doc. 313-1, p. 1).

In a written declaration, Defendant Walls testified that her duties as healthcare

unit administrator included verifying adherence to Illinois Department of Corrections

policies and procedures regarding healthcare. (Doc. 317-1, p. 1). Although she is a

registered nurse, Walls’ position at Menard was administrative. (Doc. 317-1, p. 1-2). Walls

did not provide dental treatment or dental hygiene services, and she did not make

recommendations for off-site treatment. (Doc. 317-1, p. 2). Walls also lacked the authority

to supersede a dentist’s decision as to a plan of care. (Doc. 317-1, p. 2). Instead, Walls’

duties included responding to grievances and letters related to healthcare questions.

(Doc. 317-1, p. 1). She customarily responded in writing to grievances and letters

regarding offender healthcare while working at Menard. (Doc. 317-1, p. 1). Walls

responded to grievances and correspondence from Tidwell on six occasions, three of

which related to Tidwell’s dental health. (Doc. 317-1, p. 1-2).

On December 16, 2015, Tidwell wrote to Walls, stating that he had requested

authorization for off-site dental treatment from the site medical director, Defendant Trost.

(Doc. 317-1, p. 1-2). Walls conferred with the dental director, Dr. Newbold, who told her

that it was not necessary that Tidwell be sent out of Menard for dental care, and Walls

responded to Tidwell’s letter accordingly. (Doc. 317-1, p. 2). About three weeks later,

Tidwell sent another letter to Walls, expressing his dissatisfaction with his dental care

and with Dr. Trost. (Doc. 317-1, p. 2). Walls reviewed Tidwell’s dental records and

responded that the multiple dentists that had evaluated him “all agreed with the

treatment plan” and that no dentist had referred his case to Dr. Trost. (Doc. 317-1, p. 2).

Tidwell also sent an undated letter to Walls requesting (1) information regarding his spot

in the teeth cleaning line and (2) documents that Walls had not yet returned to him. (Doc.

317-1, p. 2). On January 19, 2016, Walls responded that Tidwell was number 663 in the

hygienists’ cleaning line, and she returned the documents to Tidwell. (Doc. 317-1, p. 2).

LEGAL STANDARDS

I. Summary Judgment Standard

Federal Rule of Civil Procedure 56 governs motions for summary judgment.

Summary judgment is appropriate if the movant shows that there is no genuine dispute

as to any material fact and that the movant is entitled to judgment as a matter of law. See

Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014)(citing FED. R. CIV. PROC.

56(a)). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of

material fact remains “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord

Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-682 (7th Cir. 2014).

In assessing a summary judgment motion, the district court views the facts in the

light most favorable to, and draws all reasonable inferences in favor of, the nonmoving

party. See Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).

As the Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by

examining the evidence in the light reasonably most favorable to the non-moving party,

giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the

evidence in [his] favor.” Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).

II. Eighth Amendment Deliberate Indifference

The Eighth Amendment prohibits cruel and unusual punishments, and the

deliberate indifference to the “serious medical needs of a prisoner constitutes the

unnecessary and wanton infliction of pain forbidden by the Constitution.” Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to

“reasonable measures to meet a substantial risk of serious harm”—not to demand specific

care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). A prisoner’s dissatisfaction with a

medical professional’s prescribed course of treatment does not give rise to a successful

deliberate indifference claim unless the treatment is so “blatantly inappropriate as to

evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition.”

Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)(citation omitted).

In order to prevail on a claim of deliberate indifference, a prisoner who brings an

Eighth Amendment challenge of constitutionally deficient medical care must satisfy a

two-part test. See Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)(citation omitted). The

first consideration is whether the prisoner has an “objectively serious medical condition.”

Arnett, 658 F.3d at 750. Accord Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). “A medical

condition is objectively serious if a physician has diagnosed it as requiring treatment, or

the need for treatment would be obvious to a layperson.” Hammond v. Rector, 123 F. Supp.

3d 1076, 1084 (S.D. Ill. 2015)(citing Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.2014)). It is not

necessary for such a medical condition to “be life-threatening to be serious; rather, it

could be a condition that would result in further significant injury or unnecessary and

wanton infliction of pain if not treated.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).

Accord Farmer, 511 U.S. at 828 (violating the Eighth Amendment requires “deliberate

indifference to a substantial risk of serious harm”)(internal quotation marks omitted).

Prevailing on the subjective prong requires a prisoner to show that a prison official

has subjective knowledge of—and then disregards—an excessive risk to inmate health.

See Greeno, 414 F.3d at 653. The plaintiff need not show the individual “literally ignored”

his complaint, but that the individual was aware of the condition and either knowingly

or recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). “Something

more than negligence or even malpractice is required” to prove deliberate indifference.

Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). See also Hammond, 123 F. Supp. 3d at 1086

(stating that “isolated occurrences of deficient medical treatment are generally

insufficient to establish . . . deliberate indifference”). Deliberate indifference involves

“intentional or reckless conduct, not mere negligence.” Berry v. Peterman, 604 F.3d 435,

440 (7th Cir. 2010)(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).

Assessing the subjective prong is more difficult in cases alleging inadequate care

as opposed to a lack of care. Without more, a “mistake in professional judgment cannot

be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th

Cir. 2016). The Seventh Circuit has explained:

By definition a treatment decision that’s 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. A doctor who claims to have exercised professional judgment is

effectively asserting that he lacked a sufficiently culpable mental state, and

if no reasonable jury could discredit that claim, the doctor is entitled to

summary judgment.

Id. (citing Zaya v. Sood, 836 F.3d 800, 805-806 (7th Cir. 2016)). This is in contrast to a case

“where evidence exists that the defendant [ ] knew better than to make the medical

decision[ ] that [he] did,” Id. (quoting Petties v. Carter, 836 F.3d 722, 731 (7th Cir.

2016))(alterations in original). A medical professional’s choice of an easier, less efficacious

treatment can rise to the level of violating the Eighth Amendment, however, where the

treatment is known to be ineffective but is chosen anyway. See Berry, 604 F.3d at 441.

ANALYSIS

Tooth decay can cause pain and is associated with a risk of infection, and it can

constitute an objectively serious medical condition. Berry, 604 F.3d at 440 (citing Board v.

Farnham, 394 F.3d 469, 480-81 & n.4, 482-83 (7th Cir. 2005); Harrison v. Barkley, 219 F.3d

132, 137 (2d Cir. 2000)). The defendants do not dispute the seriousness of Tidwell’s dental

problems. Therefore, the Court finds that a reasonable jury could conclude that Tidwell

had an objectively serious medical condition.

I. Deliberate Indifference

Defendant Henderson argues that he is entitled to summary judgment because he

was not deliberately indifferent to Tidwell’s serious medical needs. Henderson claims

that he exercised his professional judgment to propose a treatment plan that would

provide Tidwell with the best results and that Tidwell disagreed with this treatment plan.

Important for the purposes of this motion is the well-established rule that a Court’s

consideration of claims of deliberate indifference must give deference to a medical

professional’s judgment regarding treatment decisions “unless no minimally competent

professional would have so responded under those circumstances.” Roe v. Elyea, 631 F.3d

843, 857 (7th Cir. 2011)(quoting Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008)). A delay

in treatment can rise to the level of deliberate indifference if the plaintiff presents medical

evidence that the delay “exacerbated the inmate’s injury or unnecessarily prolonged his

pain.” Perez v. Fenoglio, 792 F.3d 768, 777-778 (7th Cir. 2015)(citing McGowan v. Hulick, 612

F.3d 636, 640 (7th Cir. 2010) and Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007));

Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013).

Henderson met with Tidwell on three occasions before Henderson retired from

Menard. During the first appointment in July of 2013, Henderson observed that Tidwell

had significant tooth decay and poor oral hygiene, and Henderson ordered a panoral x-

ray for evaluation. In August of 2013, Henderson examined Tidwell’s partial dental

prosthesis and noted several conditions that would complicate the creation of upper and

lower partial dentures. One week later, Henderson followed up with Tidwell and

recommended the extraction of four teeth before creating upper and lower partial

dentures. Tidwell refused the extractions, and, thereafter, he did not contact Henderson,

schedule an appointment for Henderson’s call line, and was never examined or treated

by Henderson again.

There is no evidence to support Plaintiff’s claim that Henderson disregarded an

excessive risk to Plaintiff’s health by delaying treatment. The record demonstrates that

Henderson exercised his professional judgment to determine a course of treatment for

Tidwell that included extracting four teeth and constructing partial upper and lower

dentures. Tidwell refused to commit to these extractions and told Henderson that he

would write to him when he was ready, but he never contacted Henderson. In a

declaration submitted in support of Henderson’s motion, a court-appointed expert

largely agreed with Henderson’s professional judgment regarding Tidwell’s treatment

plan. There is nothing in the record that calls into question Henderson’s professional

judgment, and Plaintiff’s mere disagreement with the treatment plan does not establish

an Eighth Amendment violation. Cesal v. Moats, 851 F.3d 714, 721 (7th Cir. 2017); see also

Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“Under the Eighth Amendment,

[Plaintiff] is not entitled to demand specific care.”). Further, there is no evidence that

Tidwell’s dental condition worsened because of the treatment he received from

Henderson or that Tidwell suffered any unnecessarily prolonged pain because of the

treatment. In short, Henderson’s treatment plan is entitled to deference because it was

not so unsuitable that “no minimally competent professional would have so responded

under those circumstances.” Roe, 631 F.3d at 857.

The record is devoid of evidence that Henderson disregarded an excessive risk to

Tidwell’s health by failing to refer Tidwell to an off-site dentist. In order to prevail on a

deliberate indifference claim against Henderson, the Plaintiff must show that Henderson

was personally involved in, or acquiesced in, unconstitutional treatment of Plaintiff.

Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010) (citing Palmer v. Marion County, 327

F.3d 588, 594 (7th Cir. 2003)). The record indicates that, after Henderson retired from

Menard in April of 2015, Tidwell sent correspondence to Defendant Walls and the dental

director requesting off-site dental treatment. At that time, the dental director determined

that off-site dental care was unnecessary. However, there is no evidence that Tidwell

submitted a request to Henderson for the purpose of seeking off-site dental care, nor is

there evidence that Tidwell requested off-site care during the period Henderson worked

at Menard. Further, there is nothing in the record that indicates that off-site dental care

was necessary to treat Tidwell’s condition. Accordingly, for all these reasons, there is

insufficient evidence to suggest that Henderson was personally involved in the alleged

failure to refer Tidwell to an off-site dentist or that Henderson displayed deliberate

indifference by failed to refer Tidwell for outside care.

Defendant Walls argues that she was not deliberately indifferent toward Tidwell

because she fulfilled her duties by investigating and responding to Tidwell’s complaints

and by consulting with dentists about Tidwell’s treatment plan. Defendant Walls did not

provide healthcare treatment to Tidwell. As the healthcare unit administrator, her duties

consisted of responding to grievances from offenders about their healthcare. Walls was

aware of Tidwell’s dissatisfaction with his dental care, and she responded in writing to

all three of Tidwell’s written complaints about his dental care. Significantly, there is

nothing contained in the record that suggests Walls had the authority either to override

a dentist’s judgment regarding a treatment plan or to request off-site treatment on her

own.

Further, when Walls received Tidwell’s request for off-site treatment, she

discussed the matter with Menard’s dental director, who decided that off-site treatment

was not necessary, and she relayed this information to Tidwell. The evidence suggests

that Walls took Tidwell’s “condition seriously, investigated the situation … and

reasonably relied on the doctors’ professional opinions,” and, therefore, Walls was not

deliberately indifferent toward Tidwell. Johnson v. Doughty, 433 F.3d 1001, 1015 (7th Cir.

2006) (citations omitted).

In addition to Defendants’ arguments on the merits of Tidwell’s claims,

Henderson argues that Plaintiff’s claims are barred by the applicable statute of

limitations. Because the Court has reached a decision in Henderson’s favor on the merits

of Tidwell’s claims, the Court declines to reach this argument.

II. Qualified Immunity

Qualified immunity shields “government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S.

223, 231 (2009). The doctrine “balances two important interests – the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties

reasonably.” Id. It protects an official from suit “when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law governing the

circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

The qualified immunity test has two prongs: (1) whether the facts shown, taken in

the light most favorable to the party asserting the injury, demonstrate that the officer’s

conduct violated a constitutional right, and (2) whether the right at issue was clearly

established at the time of the alleged misconduct. See Pearson, 555 U.S. at 232. See also

Brosseau, 543 U.S. at 197; Wilson v. Layne, 526 U.S. 603, 609 (1999). To be “’clearly

established’ a right must be defined so clearly that every reasonable official would have

understood that what he was doing violated that right.” Dibble v. Quinn, 793 F.3d 803, 808

(7th Cir. 2015)(citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). There need not be a case

directly on point, but “existing precedent must have placed the statutory or constitutional

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The right must be

established “not as a broad general proposition.” Reichle, 566 U.S. at 664. Instead, it must

be “particularized” such that the “contours” of it are clear to a reasonable official. Id. That

is, “existing precedent must have placed the statutory or constitutional question beyond

debate.” Carroll v. Carmen, 135 S.Ct. 348, 350 (2014).

Defendants Henderson and Walls are entitled to qualified immunity. It was clearly

established at the time of Tidwell’s dental condition that prison officials cannot act with

deliberate indifference to an inmate’s serious medical or dental needs. However,

Henderson and Walls engaged in no conduct that violated Tidwell’s constitutional rights.

This is because, even drawing all reasonable inferences in favor of Tidwell, no reasonable

jury could conclude that Walls and Henderson were deliberately indifferent toward

Tidwell. Therefore, the Defendants’ conduct does not satisfy the first prong of the test set

forth above, and they are entitled to qualified immunity.

CONCLUSION

For the above-stated reasons the motions for summary judgment filed by

Defendants Harry Henderson (Doc. 312) and Gail Walls (Doc. 316) are GRANTED. The

Clerk of Court shall enter judgment in favor of Defendant Harry Henderson and

Defendant Gail Walls and against Plaintiff Cleo Tidwell and shall close this case.

SO ORDERED.

Dated: February 5, 2021 Auer Lp

DAVID W. DUGAN

United States District Judge