Johnson v. Litherland

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES JOHNSON,

Plaintiff,

v. Case No. 21-CV-00449-SPM

MARK LITHERLAND,

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Pending before the Court is a Motion for Summary Judgment filed by

Defendant Dr. Mark Litherland, D.M.D. (Doc. 61). Pro se Plaintiff James Johnson

filed a Response. (Doc. 66). Having been fully informed of the issues presented, the

Motion for Summary Judgment is GRANTED.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Pro se Plaintiff James Johnson is an inmate presently incarcerated at Illinois

River Correctional Center in Canton, Illinois. (See Doc. 1). Johnson’s lawsuit arises

from what he alleges was failure to treat a broken tooth in 2020 and 2021. (See id.,

pp. 8–10). Johnson alleges that he submitted various sick call requests and grievances

for severe pain in his tooth which prevented him from eating and drinking and caused

headaches. (See id., pp. 8–9, 13–14). He filed the instant suit on May 4, 2021 alleging

Eighth Amendment deliberate indifference claims against Defendants Dr. Mark

Litherland; John Doe (Director of Medical Services at Wexford Health Sources, Inc.);

Dr. Steven Meeks; Illinois Governor J.B. Pritzker; Dr. Tran; Jane Doe 1 (Dental

Assistant); Jane Doe 2 (Director of Registered Nurses at Wexford); and Wexford itself.

(See Doc. 1, pp. 1–4). This Court conducted preliminary review of Johnson’s

Complaint pursuant to 28 U.S.C. § 1915A on March 29, 2022. (Doc. 12). The Court

held that Johnson had stated colorable claims against Defendants Litherland, Tran,

Meeks, Jane Doe 1, Jane Doe 2, and John Doe Director of Medical Services, but

dismissed the claims against Governor Pritzker and Wexford for failure to state a

viable claim against them. (Id., p. 5). The Court dismissed Johnson’s claims against

the John/Jane Doe Defendants on February 7, 2023 for failure to substitute names or

identify these parties by name by December 26, 2024. (See Doc. 46, p. 2). Defendants

Tran and Meeks filed motions for summary judgment for failure to exhaust

administrative remedies (Docs. 38, 43) which were granted on August 8, 2023 (see

Doc. 53).

Defendant Litherland’s Motion for Summary Judgment was filed on June 21,

2024. (See Doc. 61). Plaintiff Johnson filed a Response on August 15, 2024 (Doc. 66)

to which Defendant Litherland replied (Doc. 67).

APPLICABLE LAW AND LEGAL STANDARDS

The court shall grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014)

(quoting FED. R. CIV. P. 56(a)). Once the moving party has set forth the basis for

summary judgment, the burden then shifts to the nonmoving party who must go

beyond mere allegations and offer specific facts showing that there is a genuine issue

of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–

23 (1986). Stated another way, the nonmoving party must offer more than

“[c]onclusory allegations, unsupported by specific facts,” to establish a genuine issue

of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

In determining whether a genuine issue of fact exists, the Court must view the

evidence and draw all reasonable inferences in favor of the party opposing the motion.

Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A genuine issue of material fact arises

only if sufficient evidence favoring the nonmoving party exists to permit a jury to

return a verdict for that party.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640–41

(7th Cir. 2008) (quoting Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008)).

The non-movant cannot simply rely on its pleadings; the non-movant must present

admissible evidence that sufficiently shows the existence of each element of its case

on which it will bear the burden of proof at trial. Midwest Imps., Ltd. v. Coval, 71

F.3d 1311, 1317 (7th Cir. 1995) (citing Serfecz v. Jewel Food Stores, 67 F.3d 591, 596

(7th Cir. 1995); Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391,

394 (7th Cir. 1993), cert. denied, 510 U.S. 1111 (1994); Celotex, 477 U.S. at 323–24).

ANALYSIS

The Eighth Amendment prohibits cruel and unusual punishment and

deliberate indifference to the “serious medical needs of a prisoner [which] 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) (citation

omitted). 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).

Claims for deliberate indifference have an objective and a subjective

component. Estelle v. Gamble, 429 U.S. 97 (1976). Johnson must establish that he

suffered from an objectively and sufficiently serious medical condition. Cesal v.

Moats, 851 F.3d 714, 721 (7th Cir. 2017). Johnson must also show that Defendants

actually knew of, but disregarded, a substantial risk to the inmate’s health. Cesal,

851 F.3d at 721. “Intentional delays in medical care may constitute deliberate

indifference, even if the inmate’s medical condition is non-life threatening.” Id. at 722

(quoting Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011)). “A doctor’s choice of

‘easier and less efficacious treatment’ for an objectively serious medical condition also

may be sufficient . . . [,] [b]ut ‘mere disagreement with a doctor’s medical judgment’

is not enough to support an Eighth Amendment violation.” Id. (first quoting Estelle,

429 U.S. at 104 & n.10; then quoting Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.

2010)).

Additionally, it is well-settled that mere negligence is not enough to establish

a defendant’s deliberate indifference. See, e.g., Davidson v. Cannon, 474 U.S. 344,

347–48 (1986). In fact, even gross negligence is insufficient. King v. Kramer, 680 F.3d

1013, 1018 (7th Cir. 2012). Instead, deliberate indifference is comparable to criminal

recklessness. Thomas v. Blackard, 2 F.4th 716 (7th Cir. 2021) (citing King, 680 F.3d

at 1018). “‘Reckless’ describes conduct so dangerous that the deliberate nature of the

defendant’s actions can be inferred.” Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765

(7th Cir. 2002) (quoting Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999)).

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. (quoting Zaya v. Sood, 836 F.3d 800, 805–06 (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)) (cleaned up). A medical professional’s choice of an “easier and 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. Berry,

604 F.3d at 441 (quoting Estelle, 429 U.S. at 104 & n.10). The Seventh Circuit has

“characterized the standard as imposing a high hurdle on plaintiffs because it

requires a ‘showing as something approaching a total unconcern for the prisoner’s

welfare in the face of serious risks.’” Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir.

2012) (quoting Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006)).

The first question before the Court is whether Johnson’s broken tooth qualified

as a “serious” medical condition. First, “the Supreme Court contemplated that

medical conditions far less critical than ‘life-threatening’ would be encompassed by

the term.” Gutierrez at 1370. “Indeed, the inmate in Estelle based his medical care

claim ‘solely on the lack of diagnosis and inadequate treatment of his back injury,’

which had been diagnosed by prison doctors as a lower back strain and treated with

muscle relaxants and pain medication.” Id. at 1370–71 (quoting Estelle at 107). The

Seventh Circuit concluded in Gutierrez that an infected pilonidal cyst was a

sufficiently “serious” medical need, like the back injury in Estelle; injuries from an

assault by prison guards in Cooper v. Casey, 97 F.3d 914, 917–17 (7th Cir. 1996); and

psychological treatment in Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996).

See Gutierrez at 1371–72. However, the Seventh Circuit put common colds, toes with

removed toenails, and mild asthma as being outside the ambit of “serious” medical

needs. See id. at 1372 (citing Gibson v. McEvers, 631 F.2d 95 (7th Cir. 1980); Snipes

v. DeTella, 95 F.3d 586, 591 n.1 (7th Cir. 1996), cert. denied, 519 U.S. 1126 (1997);

Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996)).

With all of the above in mind, the Seventh Circuit noted that “[i]t is a far easier

task to identify a few exemplars of conditions so plainly trivial and insignificant as to

be outside the domain of Eighth Amendment concern than it is to articulate a

workable standard for determining ‘seriousness’ at the pleading stage.” Id. at 1372.

Notably, Gutierrez involved a suit dismissed at the pleadings, not a case at the point

of summary judgment as in the instant case.

The Seventh Circuit has a developed line of cases establishing that decayed,

broken, or damaged teeth are serious medical conditions. See Munson v. Newbold, 46

F.4th 678, 681 (7th Cir. 2022); see also Green v. Beth, 663 F. App’x 471, 473 (7th Cir.

2016) (citing Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010); Board v. Farnham,

394 F.3d 469, 480 (7th Cir. 2005); Flanory v. Bonn, 604 F.3d 249, 255–56 (6th Cir.

2010); Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004)); Hoeft v. Menos, 347

F. App’x 225, 227 (7th Cir. 2009) (“The complaint meets this standard. Dental care is

one of the most important needs of inmates, and the symptoms Hoeft describes—six

months of extensive pain from untreated cavities and tooth loss that prevented him

from properly chewing his food—qualify as a serious medical condition.” (citing

Farnham, 394 F.3d at 480; Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001);

Cooper v. Schriro, 189 F.3d 781, 783–84 (8th Cir. 1999); Chance v. Armstrong, 143

F.3d 698, 703 (2d Cir. 1998); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989)).

Dr. Litherland argues in the instant Motion that Johnson’s tooth pain was not

a serious medical need. (See Doc. 62, p. 12). “Although dental pain accompanied by or

leading to some other dental problem can be a serious medical need, a toothache alone

is not sufficient to establish an Eighth Amendment claim.” (Id. (citing Dorsey v.

Taylor, 2015 U.S. Dist. LEXIS 140753, *4 (N.D. Ill. 2015); Farnham, 394 F.3d at 480

(7th Cir. 2005)). He argues that “[b]ecause Plaintiff’s tooth pain was deemed non-

emergent each time he was seen by Dr. Litherland, Dr. Litherland prescribed

Plaintiff only over the counter pain medication (ibuprofen)” and that “per Plaintiff’s

own testimony, such medication effectively treated his tooth pain.” (Id., p. 13 (citing

id., Ex. A, 31:5–13, 31:19–24)). Dr. Litherland argues that “[t]he facts of this case are

analogous to those in Olson where the Court found that a broken tooth that only

required over the counter pain medication before it was removed is not evidence of a

serious medical need.” (Id. (citing Olson v. Morgan, 750 F.3d 708, 713–14 (7th Cir.

2014))).

In opposition, Johnson argues that he was “in severe pain” and that his tooth

pain “caused headaches, kept him from drinking, eating, and sleeping.” (Doc. 66, p.

7). In his Deposition, Johnson says:

I couldn’t eat meals like that. If I ate, it was very to a minimal [sic] and

it was one side of my mouth. I couldn’t drink anything. Couldn’t put any

liquid on the side -- drinks, I had to tip my head this way (indicating).

Any things liquid I kept out of my mouth. It hurted [sic] too bad. I

remember food, trying to eat it, and it hurt so bad.

(Doc. 62, Ex. A, 27:18–28:1). He also indicates that he lost weight because he “wasn’t

eating like [he] normally eat[s].” Id. 28:4.

The factual record indicates that Johnson first told Dr. Litherland about his

dental issue on May 20, 2020 and then reiterated that his tooth had pain and

sensitivity on June 16, 2020; August 12, 2020; and November 10, 2020.1 (See Doc. 62,

¶¶ 7–16 (citations omitted)). Because of Illinois Department of Corrections (“IDOC”)

Covid-19 restrictions, Dr. Litherland was not able to perform a dental examination of

1 Dr. Litherland went to visit Johnson at his cell on August 11, 2020, but he was not available. (See

Doc. 62, ¶ 10). Johnson also failed to appear for a follow-up dental examination on September 2, 2020.

(See id., ¶ 12).

Johnson until the final time he saw him on November 10, 2020. (See id., ¶¶ 15–16

(citations omitted)). In his examination, Dr. Litherland indicated that, while there

was no noted decay to tooth #29, the B-root and enamel of tooth #29 were sensitive to

the dental explorer and the B-cusp tip of tooth #29 was chipped. (See id., ¶¶ 15 (citing

id., Ex. B, p. 4; id., Ex. C, p. 7)). Considering the evidence in the manner most

favorable to Johnson, the Court holds that a reasonable jury could find that Johnson’s

dental issues with tooth #29 were a sufficiently serious medical need in line with the

first prong of the deliberate indifference standard. See Cesal, 851 F.3d at 721.

We then move to the question of whether Dr. Litherland was deliberately

indifferent to Johnson’s broken tooth. In Cesal, the Seventh Circuit found that a

prison physician was not deliberately indifferent to an inmate’s back injury because

there was not “any reason in this record to think that starting with the physician

assistant and nurse was not a reasonable step.” Id. at 723. While Johnson argues that

there were significant delays in his treatment, the Seventh Circuit has stated that

“[o]ne thing which has long been clear in our Eighth Amendment cases is that the

amendment is not coterminous with a medical malpractice claim.” Forbes v. Edgar,

112 F.3d 262, 266 (7th Cir. 1997) (citing Bryant v. Madigan, 84 F.3d 246 (7th Cir.

1996); Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996); Snipes v. DeTella, 95 F.3d 586 (7th

Cir. 1996), cert. denied, 519 U.S. 1126 (1997)). Additionally, prisoners are “not

entitled to the best care possible” but rather “to reasonable measures to meet a

substantial risk of serious harm to her.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.

1997). When a prisoner sought “specific treatment and foolproof protection from

infection,” the Seventh Circuit stated that “[t]he Eight [sic] Amendment does not

provide her with either.” Forbes, 112 F.3d at 266.

As mentioned above, Dr. Litherland first saw Johnson on May 20, 2020. (See

Doc. 62, ¶ 7 (citing id., Ex. A, 23:16–19; id., Ex. B, p. 2; Ex. C, p. 5)). While he visited

Johnson at the door of his cell, Dr. Litherland “was unable to perform any type of

dental evaluation due to IDOC COVID restrictions other than a visual examination

of each patient at their cell door.” (Id. (citing id., Ex. B, p. 2; id., Ex. C, p. 5)). Dr.

Litherland states that he “did not believe [Johnson’s] tooth pain was emergent as

there was no indication based on Plaintiff’s physical presentation at his cell door that

he was in severe pain or had severe swelling,” noting that “[h]e was not grimacing,

and his face did not appear swollen.” (Id. (citing id., Ex. B, p. 2; id., Ex. C, p. 5)). Dr.

Litherland indicated that Johnson should be evaluated after the Covid restrictions

were lifted and prescribed him ten days’ worth of ibuprofen. (See id. (citing id., Ex. A,

26:1–4; 29:1–4; id., Ex. B, p. 2; id., Ex. C, pp. 5, 16)).

Dr. Litherland saw Johnson again on June 16, 2020 at his cell door. (See id., ¶

8 (citing id., Ex. A, 29:17–19; id., Ex. B, p. 2; id., Ex. C, p. 5)). Like on his May 20,

2020 encounter with Johnson, Dr. Litherland again states that Johnson did not show

signs of swelling or severe pain, that he prescribed Johnson ibuprofen, and that he

told Johnson that he was on the waiting list for a dental evaluation. (See id. (citing

id., Ex. B, p. 2; id., Ex. C, pp. 5, 14)). He also proscribed a ten-day course of the

antibiotic amoxicillin. (See id. (citing id., Ex. B, p. 2; id., Ex. C, pp. 5, 14)). Johnson

states in his Deposition that he “wasn’t in so much pain as before” after taking his

prescribed medication. (See id. (citing id., Ex. A, 31:5–13, 31:19–24)).

Johnson filed Grievance #5-20-300 requesting dental treatment on May 21,

2020. (See id., ¶ 9 (citing id., Ex. E, Select Grievance Records for MSJ, 4–5)). Dr.

Litherland responded on June 17, 2020, informing the counselor that he saw Johnson

on June 16, 2020 and that Johnson would remain on the waiting list for a dental exam

when the Covid restrictions were lifted by IDOC. (See id. (citing id., Ex. E, Select

Grievance Records for MSJ, 4–5)).

Dr. Litherland next saw Johnson on August 12, 2020.2 (See id., ¶ 11 (citing id.,

Ex. B, p. 3; id., Ex. C, p. 7)). Like the visit on June 16, 2020 described supra, Dr.

Litherland noted that he did not believe Johnson’s pain was emergent as neither

swelling nor physical manifestations of severe pain were noted. (See id., ¶ 11 (citing

id., Ex. B, p. 3)). Dr. Litherland again advised Johnson that he was on the priority

list for a dental evaluation, prescribed him thirty days’ worth of ibuprofen, and

prescribed him amoxicillin for use if swelling occurred. (See id., ¶ 11 (citing id., Ex.

B, p. 3; id., Ex. C, pp. 7, 14)).

Dr. Litherland was able to conduct a dental examination of Johnson on

November 10, 2020.3 (See id., ¶ 15 (citing id., Ex. A, 39:13–40:6; id., Ex. B, p. 4; id.,

2 Dr. Litherland notes that he went to visit Johnson at his cell on August 11, 2020, but Johnson was

“unavailable at that time for an unknown reason.” (Id., ¶ 10 (citing id., Ex. B, p. 3; id., Ex. C., p. 7)).

3 Dr. Litherland notes that Johnson failed to show up for a follow-on evaluation at the dental clinic on

September 2, 2020 (see id., ¶ 12 (citing id., Ex. B, p. 3; id., Ex. C, p. 7)); that he was seen by a nurse

for, inter alia, tooth pain on October 31, 2020 (see id., ¶ 13 (citing id., Ex. B, p. 3; id., Ex. C, pp. 1–2));

and that he was seen by a non-party physician (Dr. Vipin Shah) on November 8, 2020 who also

prescribed ibuprofen (see id., ¶ 14 (citing id., Ex. A, 36:15-21; id., Ex. B, p. 3–4; id., Ex. C, pp. 3, 13,

15)).

Ex. C, p. 7)). As discussed supra, Dr. Litherland indicated that, while there was no

noted decay to tooth #29, the B-root and enamel of tooth #29 were sensitive to the

dental explorer, and the B-cusp tip of tooth #29 was chipped. (See id. (citing id., Ex.

B, p. 4; id., Ex. C, p. 7)). He also performed x-rays, which showed “a space between

tooth #29 and tooth #30.” (Id. (citing id., Ex. B, p. 4; id., Ex. C, p. 7)). Additionally,

Dr. Litherland “advised Plaintiff he would attempt composites in the B-root and B-

cusp, to correct the chip in the enamel of tooth #29, which may be causing him pain;

however, the composites may not solve the problem as tooth #29 or tooth #30 may be

the cause of his pain.” (Id. (citing id., Ex. B, p. 4; id., Ex. C, p. 7)). Dr. Litherland

states that he “also advised [Johnson that] the tooth may have other issues and he

may be unable to repair the cracked tooth” and that “the tooth [would] probably

require extraction to resolve the pain.” (Id. (citing id., Ex. B, p. 4; id., Ex. C, p. 7)). Dr.

Litherland notes that he did not see Johnson again after the November 10, 2020 visit.

(See id., ¶ 16 (citing id., Ex. A, 40:7–22; id., Ex. B, p. 4; id., Ex. C, pp. 7–9)).

While Johnson argues in his Deposition that “Dr. Litherland ‘never gave [him]

pain meds,’” (id., p. 14 (quoting id., Ex. A 20:23–21:34)), Dr. Litherland argues that

“Plaintiff ultimately testified Dr. Litherland did, in fact, provide Plaintiff with

ibuprofen (pain medication) and antibiotics” (id. (quoting id., Ex. B, pp. 2, 3; id., Ex.

C, pp. 5, 7, 14, 16)). He also argues that “there is no evidence to support Plaintiff’s

claim that Dr. Litherland was deliberately indifferent in his treatment of Plaintiff’s

4 “Gave” is misspelled as “game” in Defendant Litherland’s Motion. (See Doc. 62, p. 14). It is spelled

correctly in Johnson’s Deposition. (See id., Ex. A, 20:23–21:3). The quotation above uses the correct

spelling for clarity.

tooth pain” because “Dr. Litherland advised Plaintiff on numerous occasions that

there were restrictions on dental examinations and procedures due to COVID” and

that “Plaintiff testified he does not believe that Dr. Litherland could have overridden

the IDOC’s policies.” (Id. (quoting id., Ex. A, 51:17–52:2, 10–12)). Dr. Litherland

argues that “should Plaintiff claim any delay in Dr. Litherland seeing Plaintiff or

providing nonemergent dental care due to IDOC COVID restrictions, such delay is

not attributable to Dr. Litherland and cannot constitute deliberate indifference.” (Id.

(citing Hoskins v. Chapman, No. 3:20-CV-00508-GCS, 2022 WL 558291, at *7 (S.D.

Ill. Feb. 24, 2022); Cunningham v. McBride, No. 3:21-CV-00247-MAB, 2024 U.S. Dist.

LEXIS 56885, at *12 (S.D. Ill. Mar. 28, 2024))). He argues that “the Eighth

Amendment does not guarantee complete pain relief or recovery” (id., p. 15 (citing

Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996))) and that “‘[t]o survive summary

judgment, Plaintiff must provide some evidence from which a reasonable jury could

conclude that defendants were deliberately indifferent to his pain. This might include

evidence that defendants ‘persist[ed] in a course of treatment known to be

ineffective.”’ (Id. (quoting Arce v. Wexford Health Sources Inc., 75 F.4th 673, 681, 2023

U.S. App. LEXIS 19359, *15–16)).

While Johnson argues that “Dr. Litherland did not exercise reasonable

acceptable medical judgment,” (Doc. 66, p. 6), Dr. Litherland argues that “Plaintiff

fails to respond to Defendant’s Statement of Undisputed Material Facts and they

should be admitted,” that “Plaintiff’s purported disputes are unsupported by the

evidence,” and that “Plaintiff lacks foundation to challenge Dr. Litherland’s dental

judgment.” (Doc. 67, p. 5 (citing FED. R. CIV. P. 56(c))). While Johnson argues that he

was in constant pain from his tooth (Doc. 66, p. 5), Dr. Litherland points to Johnson’s

Deposition, during which he stated that the prescribed medication helped with the

swelling and made the tooth feel better. (Doc. 67, p. 6 (citing Doc. 62, Ex. A, 31:5–

32:10)). Dr. Litherland also points to Johnson’s Deposition testimony in which he

states that his teeth did not hurt all the time. (See Doc. 67, p. 6 (citing Doc. 62, Ex. A,

34:1–6; id., Ex. B, p. 3; id., Ex. C, p. 7)). “He also argues that Johnson “conflates an

objective assessment performed by Dr. Litherland and Plaintiff’s subjective

assessment of his pain and challenges Dr. Litherland’s ability to determine whether

Plaintiff presented with any physical indications of pain or facial swelling.” (Id.).

While Johnson argues that “a one and a half inch beard on his face [made] a visual

determination impossible,” (Doc. 66, p. 3), Dr. Litherland argues that “Plaintiff lacks

foundation to opine that facial hair impairs a provider from determining facial

swelling” and that “Plaintiff retained no expert witness qualified to offer an opinion

of the same.” (Doc. 67, p. 4).

Considering the above, it is clear that Dr. Litherland’s treatment did not

violate the Eighth Amendment. As discussed supra, inmates are 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). While Johnson insists

that Dr. Litherland deliberately did nothing to ease his pain, it is undisputed that

Dr. Litherland examined him to the maximum extent possible given the IDOC Covid-

19 lockdowns and that he prescribed ibuprofen and antibiotics, which eased Johnson’s

tooth pain. (See Doc. 62, Ex. A, 31:5–32:10). Johnson testified in his Deposition that

“I ain’t saying it don’t hurt all the time. Some days it just wasn’t as bad as other days.

It was hurting most definitely. But it just wasn’t as bad as other days.” (Id., Ex. A,

34:3–6). He also said that the antibiotics “definitely helped it a little bit.” (Id., Ex. A,

35:13). Clearly, then, he cannot argue that Dr. Litherland failed to treat him

entirely—rather, Dr. Litherland treated Johnson to the maximum extent possible in

accordance with the Covid-19 protocols.

Additionally, while Johnson refers to an email sent by Lisa Weitekamp to

Acting IDOC Director Latoya Hughes and IDOC Chief Legal Counsel Robert Fanning

in which Ms. Weitekamp states that “it is a bit concerning that we are letting someone

be in pain for a year,” (Doc. 66, p. 38), Dr. Litherland testified that he last examined

Johnson on November 10, 2020. (See Doc. 62, ¶ 16 (citing id., Ex. A, 40:7–22; id., Ex.

B, p. 4; id., Ex. C, 7–9)). As Dr. Litherland is the only remaining Defendant in this

action, Johnson cannot point to other already-dismissed Defendants’ purported

inaction post-November 10, 2020 as proof of Dr. Litherland’s deliberate indifference.

The Court also notes that Johnson failed to present for a follow-up dental

examination on September 2, 2020 after last seeing Dr. Litherland at his cell on

August 12, 2020. (See Doc. 62, ¶ 11 (citing id., Ex. B, p. 3; id., Ex. C, p. 7)). Dr.

Litherland was first made aware of Johnson’s tooth pain on May 20, 2020, some 105

days before his scheduled follow-up examination on September 2, 2020. (See id., ¶ 7).

Thus, Johnson cannot argue that Dr. Litherland is responsible for him being in pain

“for a year.” (Doc. 66, p. 38).

The Seventh Circuit has noted that “[e]xercises of medical judgment—even

when they prove wrong . . . —are inconsistent with a deliberately indifferent state of

mind.” Owens v. Duncan, 788 F. App’x 371, 374 (7th Cir. 2019) (citing Petties v. Carter,

836 F.3d 722, 729 (7th Cir. 2016) (en banc)).5 While Johnson attempts to argue that

“‘Dr. Litherland’s treatment of [Plaintiff’s] tooth injury department from minimum

professional standards’ and ‘Dr. Litherland did not exercise reasonable acceptable

medical judgment,’” (Doc. 67, p. 6 (quoting Doc. 66, p. 6)), it is clear here that Dr.

Litherland’s actions to treat Johnson were in line with his own knowledge and

experience as a dentist. Even if Johnson were able to provide testimony from a

medical expert, like the Seventh Circuit stated in Owens, “a medical expert’s analysis

of this record—showing frequent, responsive care and pain management—could

amount only to a differing opinion about the best course of treatment, which cannot

support a finding of deliberate indifference.” Owens at 375 (citing Greeno v. Daley,

414 F.3d 645, 653 (7th Cir. 2005)). Thus, Johnson’s opinions about his treatment do

not amount to evidence of a deliberate indifference claim.

In conclusion, while Johnson has adequately argued that his tooth pain was a

“serious” medical condition requiring treatment, Johnson has not met his burden to

rebut Dr. Litherland’s evidence that he was not deliberately indifferent to his medical

needs and that there are no genuine disputes of material fact. Because a reasonable

jury could not find that Dr. Litherland was deliberately indifferent in violation of the

5 The Court notes that Dr. Litherland was a named defendant in Owens. See 788 F. App’x at 374.

Eighth Amendment, Dr. Litherland’s Motion for Summary Judgment (Doc. 61) must

be granted.

CONCLUSION

For the reasons set forth above, the Defendant Dr. Mark Litherland, D.M.D.’s

Motion for Summary Judgment (Doc. 61) is GRANTED. This case is DISMISSED

with prejudice. The Clerk of Court is DIRECTED to close this case on the Court’s

docket.

IT IS SO ORDERED.

DATED: October 15, 2024

/s/ Stephen P. McGlynn_

STEPHEN P. McGLYNN

U.S. District Judge