United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN Chief Judge
currently incarcerated at Big Muddy River Correctional Center
(“BMRCC”), has brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff
claims that Defendants were deliberately indifferent to his
serious dental condition. He also asserts state law tort
claims. This case is now before the Court for a preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915A.
§ 1915A, the Court is required to screen prisoner
complaints to filter out non-meritorious claims. See
28 U.S.C. § 1915A(a). The Court must dismiss any portion
of the 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. 28 U.S.C. § 1915A(b).
action or claim is frivolous if “it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an
objective standard that refers to a claim that “no
reasonable person could suppose to have any merit.”
Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir.
2000). 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.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.”
Id. at 557. Conversely, a complaint is plausible on
its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court is obligated to accept factual allegations
as true, see Smith v. Peters, 631 F.3d 418, 419 (7th
Cir. 2011), some factual allegations may be so sketchy or
implausible that they fail to provide sufficient notice of a
plaintiff's claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not
accept as adequate abstract recitations of the elements of a
cause of action or conclusory legal statements.”
Id. At the same time, however, the factual
allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
these standards, the Court finds that the Complaint is
subject to dismissal pursuant to § 1915A. However,
Plaintiff shall be allowed an opportunity to amend his
to the Complaint, on July 16, 2016, Plaintiff was seen by
“the Wexford medical providers Dental staff, ”
and was told that his tooth #14 needed to be pulled. (Doc. 1,
p. 5). However, the dentist extracted tooth #13 and left #14
alone. Plaintiff put in a number of grievances over the
extraction of the wrong tooth. Following this error,
Plaintiff has suffered pain from tooth #14 and his infected
gum, which prevents him from sleeping and eating. The
infected area caused a terrible odor in Plaintiff's
mouth. (Doc. 1, p. 5).
complained to “Administration” about the
inadequate treatment, from September 2016 through November
2016. After these complaints, he received a call pass about
the problem. (Doc. 1, p. 6). The Complaint does not disclose
whether tooth #14 was eventually pulled or whether Plaintiff
may have received follow-up treatment for his infection and
on these facts, Plaintiff asserts a claim for deliberate
indifference against Isaacs (Health Care Administrator), the
Unknown Party Dentist, and Wexford Services, Inc., which
employs the BMRCC dental staff. (Doc. 1, pp. 6-8). He also
claims these Defendants engaged in “negligence and
malpractice.” (Doc. 1, p. 7).
examination of the documents Plaintiff filed along with the
Complaint sheds a bit more light on the sequence of events.
In Plaintiff's grievance dated September 1, 2016, he
states that he saw a dentist at Sheridan Correctional Center
in July 2015, because of pain in tooth #14. (Doc. 1-2, p. 6).
On November 21, 2015, the dentist told Plaintiff he did not
want to fill tooth #14 due to fear of hitting the nerve, and
recommended tooth #14 be extracted. Id. Later, at
BMRCC on September 1, 2016, Plaintiff went to have the tooth
extracted, but the dentist pulled the wrong tooth. The
counselor's response written on this grievance states
that an x-ray showed deep decay in tooth #13, and Plaintiff
consented to have that tooth pulled. Id. Plaintiff
filed another grievance on September 2, 2016 (Doc. 1-2, p.
7), which relates the same sequence of events, but specifies
that the dentist extracted tooth #13, when it was tooth #14
that should have been pulled. Plaintiff stated at that time
that he continued to experience discomfort with tooth #14.
(Doc. 1-2, p. 8).
includes the grievance officer's response to his
complaints, which states that “On 9-29-16 dental was
consulted about tooth #14, ” which also showed deep
decay but could be filled. (Doc. 1-2, p. 9). Plaintiff
“was seen on September 26, 2016, and signed a refusal
to have the tooth [#14] filled.” Id.
January 5, 2017, Plaintiff filed another grievance, which
states that tooth #14 is causing him “daily pain and
suffering.” (Doc. 1-2, p. 10). He asked for tooth #14
to be pulled immediately, because it was infected and
interfered with his ability to eat. The counselor's
response directed Plaintiff to “follow proper procedure
and contact dental about tooth.” Id. Plaintiff
wrote a response, stating that he did not sign a refusal on
September 26, 2016, for treatment of tooth #14, and wanted it
to be pulled as it was originally scheduled. (Doc. 1-2, p.
11). The February 2017 response to this grievance directed
Plaintiff to follow the nurse sick call and referral process.
(Doc. 1-2, p. 12).
relief, Plaintiff seeks a declaratory judgment, as well as
compensatory and punitive damages. (Doc. 1, pp. 8-9).
Review Pursuant to 28 U.S.C. § 1915A
on the allegations of the Complaint, the Court finds it
convenient to divide the pro se action into
the following counts. The parties and the Court will use
these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as
to their merit. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be
considered dismissed without prejudice.
Eighth Amendment claim for deliberate indifference to
Plaintiff's dental needs, for extracting the wrong tooth
(#13) and then for delaying and/or failing to provide