United States District Court, C.D. Illinois
MERIT REVIEW ORDER
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE
proceeding pro se, pursues a § 1983 action for
deliberate indifference to his serious medical needs at the
Western Illinois Correctional Center. The case is before the
Court for a merit review pursuant to 28 U.S.C. § 1915A.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649-51 (7th Cir. 2013). However, conclusory statements
and labels are insufficient. Enough facts must be provided to
“state a claim for relief that is plausible on its
face.” Alexander v. United States, 721 F.3d
418, 422 (7th Cir. 2013)(citation and internal quotation
marks omitted). While the pleading standard does not require
“detailed factual allegations”, it requires
“more than an unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
has filed 20 lawsuits and has accumulated four strikes.
Talley v Gongockey, No. 13-1112 (C.D. Ill. Nov. 18,
2013); Talley v Reardon, No. 14-2251 (C.D. Ill. Feb.
2, 2015); Talley v Williams, Case No. 14-3291 (C.D.
Ill. July 14, 2015) and Talley v Clerk of Court, No.
15-5323 (N.D. Ill. June 19, 2015). Plaintiff has filed this
latest complaint and a petition to proceed in forma pauperis,
without prepayment of the filing fee [ECF 3]. Pursuant to 28
U.S.C.§1915(g), a plaintiff may not proceed in forma
pauperis if he has accumulated three or more strikes unless
“under imminent danger of serious physical
names Warden Korte, Medical Director Butler, Healthcare
Supervisor Shoemaker, Cindy Hobrock, Lt. Meagason and two
John Doe dentists. Plaintiff alleges that he had a hole in an
upper right tooth and sent numerous requests in January and
February, 2016, to be seen by a dentist. In February 2016, he
was seen by a female dentist who provided him a temporary
filling. Plaintiff alleges that she placed the filling
“without cleaning it out or without giving him an
asserts that the pain in his tooth returned several weeks
later accompanied by swelling of the gum. He also claims that
an upper left tooth broke and it was several months before he
was seen by the dentist. On an unidentified date in June
2016, the same female dentist x-rayed Plaintiff's teeth
and scheduled him for a filling.
28, 2016, Plaintiff's tooth was filled by a male dentist
who “insisted on shooting him up with
Novocain...” Plaintiff claims that the dentist drilled
his tooth, pulled part of his nerve out of the gum and into
the drilled tooth, damaged the tooth next to it. Plaintiff
claims that the doctor used too much Novocain as he was numb
for approximately 8 hours. He claims that he has had heart
pain ever since, and that the amount of Novocain used could
have caused his death. He also claims that he had pain every
time he chewed on the drilled tooth, and that it was
sensitive to hot, cold and air. These symptoms appear to have
resolved though Plaintiff claims that he now experiences
excruciating pain and nerve pain in his teeth.
complained of the alleged over-use of Novocain to Defendants
Butler, Korte, Shoemaker, Meagason and Hobrock. Plaintiff
claims that these Defendants disregarded his serious medical
needs, failed to provide him with pain medication and failed
to refer him to a specialist.
Plaintiff names the female dentist, his claims against her
are that she did not clean or x-ray the tooth prior to
placing a temporary filling in February 2016. He states that
this dentist saw him again in June 2016, undertook x-rays and
scheduled him for a filling which was done by another dentist
on June 28, 2016. These assertions fail to allege that
Plaintiff suffered an excessive risk to his health which
Defendant disregarded. It also fails to assert that Plaintiff
suffered any harm as a result of Defendant's actions.
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
Doe Dentist #1 is DISMISSED.
claims that the male dentist, John Doe Dentist #2, was
deliberately indifferent for drilling his tooth to the extent
that Plaintiff experienced pain upon chewing and was
sensitive to hot, cold and air. As noted, Plaintiff is a
3-striker and may proceed in forma pauperis only if
in imminent danger of serious physical harm. The requirement
that the danger be “imminent” is meant as
“an escape hatch for genuine emergencies…”
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.
2002). It is to be asserted if “time is pressing”
and “a threat ... is real and proximate.”
Heimermann v Litxcher, 337 F.3d 781 (7th Cir. 2003).
To be imminent, the harm must be occurring “at the time
the complaint is filed.” Ciarpagini v. Saini,
352 F.3d 328, 330 (7th Cir. 2003). In addition to being
imminent, the danger must also involve “serious
physical injury.” 28 U.S.C. § 1915(g). Courts are
to deny a 3-strikes plaintiff leave to proceed in forma
pauperis “when prisoner's claims of imminent
danger are conclusory or ridiculous.”
Ciarpagini at 330.
appears that the pain upon chewing and tooth sensitivity
resolved as, at the time of filing, Plaintiff no longer
complained of these particular symptoms. Plaintiff states a
colorable claim of deliberate indifference against Doe
Defendant #2 for the manner in which he drilled his tooth.
However, this claim occurred on June 28, 2016, and the
associated symptoms had resolved by the time Plaintiff filed
his December 20, 2016 complaint. As a result, the complaints
of pain on chewing and tooth sensitivity were not occurring
“at the time the complaint [was] filed.”
Ciarpagini at 330. This claim against Doe Defendant
#2 will be allowed to procced but Plaintiff will not be
granted leave to proceed in forma pauperis.
Plaintiff did not complain of chewing pain and sensitivity
when he filed his complaint, he did complain of
“excruciating pain” and “nerve pain”
in his “teeth”. He does not, however, claim to
have pain in the tooth which was drilled and might well have
pain in all of his teeth. He does not claim that he sought,
and was refused treatment, for this pain. Plaintiff does not
indicate when this pain began and does not allege that it
resulted from the care rendered by Doe Dentist #2. As a
result, Plaintiff fails to state a claim against Doe Dentist
#2 regarding the excruciating nerve pain he is currently
remaining claim against Doe Dentist #2 is that he used too
much Novocain which caused Plaintiff to be numb for eight
hours and left him with residual “heart pain. ”
The Court finds Plaintiff's unsupported claim that his
heart pain is related to the use of dental Novocain
“conclusory or ridiculous.” Ciarpagini
at 330. This claim is DISMISSED.
Defendants Butler, Korte, Shoemaker, Meagason, and Hobrock,
Plaintiff alleges that they were deliberately indifferent as
they knew of the Doe Dentist's over-use of Novocain but
failed to provide Plaintiff pain medication or referral to a
specialist. Plaintiff does not claim that he asked them for
pain medication or that they had the authority to prescribe
him pain medication. Furthermore, he fails to reveal the
reason for which he needed referral to a specialist.
Plaintiff will be given an opportunity to replead this claim
with more specificity. He will not be granted leave to
proceed in forma pauperis as these complaints arose
on June 28, 2016, and were not occurring at the time the
complaint was filed. Ciarpagini at 330.