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Knoxx v. Nurse Mall

United States District Court, S.D. Illinois

November 29, 2017

TED KNOX, Plaintiff,
v.
NURSE MALL, NURSE LAING, NURSE MARSHALL, NURSE CHATTEN, NURSE TRIPP, NURSE WILLIAMS, NURSE GREGSON, NURSE MEGEE, DOCTOR OSEMEYER, NURSE RON, NURSE SUZY, NURSE MARTHA, NURSE BRENDA, NURSE KEISHA, NURSE SHELLBY, LT. LEE, MCWILLIAMS, WARDEN LASHBROOK, BEN PLUMLEE, and DOCTOR NEWBOLD, Defendants.

          MEMORANDUM & ORDER

          MICHAEL J. REAGAN, UNITED STATES DISTRICT JUDGE

         On May 31, 2017, this case, including a motion for preliminary injunction (Doc. 3), was severed from a related case filed by Plaintiff Ted Knox (Case No. 17-494-SMY-RJD). Knox brings an Eighth Amendment claim for deliberate indifference to his serious dental needs against the defendants for allegedly denying and delaying care for an abscessed and infected tooth in April and May 2017. Defendant Lashbrook responded to the motion for preliminary injunction on June 26, 2017 (Doc. 21). Magistrate Judge Stephen C. Williams held an evidentiary hearing on June 28, 2017, and later issued a report & recommendation (Doc. 35) recommending that the undersigned deny Knox's motion. Knox timely filed objections to the report & recommendation (Doc. 37) to which Defendants did not respond.

         Timely objections having been filed, the Court undertakes de novo review of the portions to the Report to which Plaintiff specifically objected. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); SDIL-LR 73.1(b). The undersigned can accept, reject, or modify Magistrate Judge Williams' recommendations, receive further evidence, or recommit the matter with instructions. Id. For the reasons stated below, the Court ADOPTS Magistrate Judge Williams' recommendations and DENIES Knox's motion for a preliminary injunction.

         Background

         Knox alleges that he has been denied adequate care for an abscessed and infected tooth. He began having issues with one of his front teeth on April 23, 2017, so he submitted a request for medical attention. Over the next several days, his tooth became very painful, leading to blood and pus in his mouth and to the tooth growing loose. On April 30, 2017, Knox alleges that he submitted another medical request form after waking up with blood on his pillow. His issues with unsuccessful medical requests and blood and pus from his tooth continued for several weeks, during which time he allegedly showed his tooth to numerous nurses who came by his cell.

         On May 10, 2017, Knox claims that he submitted an emergency grievance to Warden Lashbrook, but he never received a response. By May 18, 2017, Knox's tooth broke off completely and began bleeding profusely, at which point he was taken to the healthcare unit where he saw Dr. Asselmeier[1], a dentist, and was given antibiotics and ibuprofen. Knox allegedly asked for an MRI to determine the extent of his infection and for a dental partial to cover his now-missing tooth, but his requests were denied.

         Defendant Lashbrook responded to Knox's motion for preliminary injunction, providing an affidavit from Gail Walls, the Healthcare Unit Administrator at Menard Correctional Center. According to Walls, Knox suffers from chronic periodontitis for which he receives treatment regularly. On June 20, 2017, Knox met with dental director Newbold who prescribed new antibiotics for Knox's periodontitis and scheduled a follow-up appointment. Newbold told Knox that the dental partial he wanted was not a viable option due to his periodontitis. At the evidentiary hearing, Knox admitted that, with the antibiotics prescribed by Newbold, the swelling in his mouth improved, but he still would like an MRI, as he is concerned that the infection might have spread elsewhere in his body. He believes an MRI could show where any infection has spread and believes that his tooth issue is causing an issue with his sinuses.

         Dr. Asselmeier testified to Knox's ongoing periodontal issues and indicated that the extent of Knox's bone loss as a result of the disease does not make him a good candidate for the partial Knox seeks. Asselmeier acknowledged that he saw Knox on May 18, 2017, for a tooth that he said Knox knocked out and that was lost due to Knox's periodontitis. He testified that he did not see any signs of infection at that time and did not prescribe antibiotics, despite Knox having a pill sheet that showed he was given antibiotics that day. According to Asselmeier, despite Knox's belief that an MRI is necessary, MRIs are not typically used in dentistry.

         After the hearing, Magistrate Judge Williams requested additional records from the parties. Defendants submitted additional medical records, and Plaintiff provided records related to prescription antibiotics he received. After reviewing the evidence, Magistrate Judge Williams recommended that the undersigned deny Knox's motion for a preliminary injunction. According to the report and recommendation, Knox's testimony and medical records demonstrate that he is being treated by the dental staff, as he had received thirty days' worth of antibiotics and was scheduled for a follow-up appointment. Judge Williams found Dr. Asselmeier's testimony credible that Knox did not require an MRI because they generally are not used in dentistry. Ultimately, the report and recommendation concluded that the dental staff was working to evaluate whether Knox could receive a successful dental partial with the severity of his periodontitis and that Knox did not face irreparable harm if he did not receive one during the pendency of his case.

         Knox timely filed objections in which he states that he believes Defendants falsified his medical records in various ways and engaged in “gamesmanship” by scheduling a dental appointment for him shortly before the evidentiary hearing. He complained that he had not received a follow-up appointment and did not believe he would. He restated his belief that he needs an MRI to show the extent of his infection and blames Menard for the severity of his periodontitis. He also argues that any delay in receiving the dental partial will cause him additional dental problems. Knox's objections generally challenge two conclusions in the report and recommendation: the conclusion that Defendants are not required to give Knox an MRI at this stage and the finding that he will not be irreparably harmed if he does not receive a new dental partial while this case is pending.

         Legal Standards

         As this review is de novo, the Court conducts an “independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge's conclusion, ” and “is free, and encouraged, to consider all of the available information about the case when making this independent decision.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013).

         A preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)(emphasis in original). Accord Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right”)(citation omitted).

         To secure a preliminary injunction, the movant must show (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm without the injunction, (3) that the harm he would suffer is greater than the harm a preliminary injunction would inflict on defendants, and (4) that the injunction is in the public interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010)(citing Winter, 555 U.S. at 20). The ‚Äúconsiderations are interdependent: the greater the likelihood of success on the merits, the ...


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