United States District Court, S.D. Illinois
RODERICK T. ALLEN, Plaintiff,
CRAIG ASSELMEIER and KIMBERLY BUTLER, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE
matter is currently before the Court on the Motion for
Summary Judgment filed by Defendant Craig Asselmeier on
December 7, 2016 (Doc. 61) and the Motion to Dismiss filed by
Defendant Kimberly Butler on December 7, 2016 (Doc. 64).
Roderick Allen, an inmate incarcerated at Menard Correctional
Center, filed this pro se action pursuant to 42
U.S.C. § 1983 on March 27, 2015, alleging he was denied
effective medical care for a dental infection (Doc. 1). More
specifically, Allen claims that since January 2015, Dr.
Asselmeier refused to adequately treat pain and swelling in
his jaw and failed to prescribe effective antibiotics for an
infection. Allen alleges that Dr. Asselmeier has only
recommended that his problematic teeth be extracted.
Following a threshold review of the complaint under 28 U.S.C.
§ 1915A, Allen was permitted to proceed on one count of
deliberate indifference in violation of the Eighth Amendment
against Craig J. Asselmeier, a dentist at Menard (Doc. 4).
Kimberly Butler, the warden at Menard, was added as a
Defendant in her official capacity only for the purposes of
injunctive relief (Doc. 4).
requested to proceed in this matter in forma
pauperis (“IFP”) (Doc. 7). Because Allen has
accumulated three “strikes” for previously filing
frivolous lawsuits in federal court, he could not proceed IFP
unless he was in imminent danger of serious physical injury
(Doc. 4). 28 U.S.C. § 1915(g). The Court was skeptical
of Allen's purported dental infection because Allen has
made similar allegations in at least four previous cases, all
of which were dismissed as frivolous (Doc. 4). Allen apparently
believes that his sister is paying Menard officials to harm
or kill him to keep him from receiving his share of the
inheritance from their father (Doc. 4). To that end,
Plaintiff has accused prison dentists of cultivating and
implanting bacteria in his mouth during a tooth extraction in
order to poison him and of allowing his infection to progress
uninhibited (Doc. 4). Nevertheless, the Court chose to give
Allen the benefit of the doubt and “rather than
summarily dismissing this action as a frivolous extension of
all those other similar claims that have been dismissed as
frivolous, the Court [accepted] for now that Plaintiff is
suffering from a dental infection that is serious enough to
warrant continued dental treatment over the course of at
least three years, without improvement and with progression
to the jaw bone.” (Doc. 4). Based on the alleged pain
and progression of the infection, and the purported lack of
treatment, the Court found that the imminent danger standard
was satisfied, and Allen was permitted to proceed IFP (Docs.
4, 8). Allen was warned, however, that if the Court later
determined that his claim was frivolous, he would be banned
from filing any civil rights cases in this Court (Doc. 4).
filing the Complaint, Allen has sought various forms of
preliminary injunctive relief related to his claim (Docs. 3,
14, 30, 76, 81, 82), all of which have been denied (Docs. 4,
73, 102). Warden Butler seeks to dismiss the complaint,
arguing that if Allen's allegations were insufficient to
warrant imposition of a preliminary injunction, then those
allegations are also insufficient to establish that he was in
imminent danger at the time he filed his complaint, and he
should not have been permitted to proceed IFP (Docs. 64, 65).
Asselmeier seeks summary judgment both on the merits of
Allen's claim and on Allen's failure to exhaust his
administrative remedies prior to filing suit (Docs. 61, 62).
Allen was granted until March 24, 2016, to file responses to
the pending motions (Doc. 79), but he did not file his
responses until May 11, 2016 (Docs. 100, 101). Despite being
tardy, the Court will still consider Allen's responses.
over seven years, Roderick Allen has had three broken and
rotting teeth-numbers 19, 30, and 31 (see Doc.
62-1). At least four dentists, on at least nine
separate occasions between 2008 and 2014, have told Allen
that the teeth need to be removed and counseled Allen on the
consequences of leaving the teeth in his mouth (Doc.
62-1). But Allen has steadfastly refused to have
the teeth extracted (Doc. 62-1). At times, Allen also has
refused other dental care, including examinations, a biopsy,
and x-rays (Doc. 62-5 to 62-19). Instead, Allen wants to have
his teeth treated with antibiotics, which he repeatedly and
routinely requests (Doc. 62-1). Allen has been informed a
number of times that antibiotics are not viable long-term
treatment option for the pain he experiences in his rotten
teeth (Doc. 62-1; Doc. 62-21). On occasion, however,
antibiotics and pain relievers have been prescribed when
there was an indication of infection in the rotten teeth or
the roots of the teeth (Doc. 62-20; Doc. 62-21, p. 4).
also apparently believes that he has been suffering from gum
disease for over seven years (Doc. 62-1; Doc. 62-21). No
dentist has found any clinical evidence, however, that Allen
has gum disease or any need for treatment with regard to his
gums (Doc. 62-21, p. 2; see also Doc. 62-1, p. 1).
interactions with Dr. Asselmeier appear to be no different
than his interactions with previous dentists. When Allen
first saw Dr. Asselmeier on January 9, 2015, he complained of
pain in teeth 19, 30, and 31 (Doc. 62-21, p. 3; Doc. 62-1).
After taking two periapical x-rays and noting extensive
decay, Dr. Asselmeier advised Allen that the teeth
“were not restorable” and needed to be extracted
(Doc. 62-21, p. 3). Dr. Asselmeier prescribed Clindamycin to
head-off a possible infection and ordered an additional x-ray
(Id.) Allen refused the x-ray, however, and instead
requested regular appointments to acquire antibiotics in
order to “prevent reinfection of broken teeth”
(Id.) Dr. Asselmeier next saw Allen on January 16th,
at which time Allen once again refused additional x-rays and
teeth extractions (Doc. 62-21, pp. 3-4).
Asselmeier believes that antibiotics are not an appropriate
treatment for Allen's pain in his rotten teeth (Doc.
62-21). Dr. Asselmeier explains that while “[t]he
antibiotics may temporarily reduce pain as they eradicate any
infection that has arisen in the rotted teeth, they are not a
long term solution” (Id. at p. 4). He further
explains that repeated antibiotic courses are not medically
appropriate when there is no evidence of infection because it
only serves to kill off beneficial bacteria in the body and
promote antibiotic resistance (Id. at p. 5). Dr.
Asselmeier believes that the appropriate treatment for
Allen's pain is to have the rotten teeth extracted
(Id. at p. 4-5).