United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge Donald G. Wilkerson (Doc.
133), which recommends denying the Second Motion for
Temporary Restraining Order and Preliminary Injunction filed
by Plaintiff Charles Dent (Doc. 127). For the reasons
explained below, the Court adopts Magistrate Judge
Wilkerson's Report and Recommendation and denies
lawsuit stems from Dent's allegations of inadequate
dental care at Shawnee Correctional Center (Doc. 1). This is
Dent's second motion for temporary restraining order and
preliminary injunction. In his first motion, filed in
November 2016, Dent asked the Court to order Defendants to
provide proper dental care and to refer Dent to an oral
surgeon (Doc. 7). After holding an evidentiary hearing,
Magistrate Judge Wilkerson recommended that Dent's first
motion be denied because there was no evidence Dent would
suffer imminent, irreparable harm absent injunctive relief,
and Dent had not established a likelihood of success on the
merits of his Eighth Amendment claim against Dr. Thomas
Burrell, the dentist at Shawnee. The undersigned District
Judge adopted Magistrate Judge Wilkerson's Report and
Recommendation and denied Dent's first motion for
injunctive relief (Doc. 71). Dent filed a motion to
reconsider that Order (Doc. 85), which also was denied (Doc.
than a week after this Court denied Dent's motion to
reconsider, he filed this Second Motion for Temporary
Restraining Order and Preliminary Injunction (Doc. 127). Dent
states that there recently have been “significant
developments” in that other inmates have been hurt by
Dr. Burrell, who “cannot properly function, based on
his physical and mental disabilities.” (Id., p.
4, 6). He claims, with no supporting evidence, that these
other inmates had to be rushed to an offsite oral surgeon due
to severe infections, broken teeth left in their gums, and
fractured and broken jaws (Id.).
also says he saw Dr. Burrell on March 5, 2018, because he has
been suffering severe pain, sensitivity, and burning
sensations, which make eating difficult. Dent avers the pain
is not the same as an abscessed tooth, which is evidence the
infection is in his gums and cannot be detected through an
x-ray. Rather, Dent believes he has a condition called
actinomycosis (Id., p. 7). He claims he needs a
culture done by a specialist, because Dr. Burrell has neither
the proper equipment nor the competence to do it.
to Dent, on March 5, 2018, Dr. Burrell examined him by
holding a light on his teeth and doing a percussion test. Dr.
Burrell concluded there were no issues with Dent's teeth,
which Dent finds incredible based on his dental history
(Id., pp. 7-8). Dr. Burrell also attempted to take
an x-ray of Dent's right mandible, but apparently the
film did not develop. Dr. Burrell rescheduled Dent to return
several days later for a new x-ray, prescribed 30 Amoxicillin
and 30 ibuprofen, and gave Dent a slow-eating permit due to
his trouble chewing (Id., pp. 11-12). Dent claims
the course of medication was ineffective (Id., p.
12). After the x-rays were taken, Dr. Burrell showed Dent the
films and informed him there was “nothing there.”
(Id.). According to Dent, this is because
actinomycosis can only be detected through a special culture
and an examination by an oral surgeon (Id., p. 13).
Given these new developments, along with the fact that he has
suffered from pain for almost two years, Dent believes he
will suffer irreparable harm if a preliminary injunction is
response, Defendants argue that Dr. Burrell, a licensed
dentist with more than 30 years of experience, used
appropriate medical judgment in determining that referral to
an offsite oral surgeon is not medically necessary.
Defendants assert that Dr. Burrell saw signs of a gum
infection when he examined Dent on March 5, 2018, so he
prescribed Dent antibiotics and pain medication
(Id.). Defendants argue that while Dent alleges
other inmates have complained about Dr. Burrell, those
allegations are unverified and inadmissible (Id.).
Likewise, Dent is not a dental or medical professional, so
his self-diagnosis of actinomycosis cannot support his
deliberate indifference claim (Id.). Defendants also
note that Dent did not visit Dr. Burrell between November 1,
2016, and March 5, 2018, nor has he followed Dr.
Burrell's recommendations to obtain teeth cleanings from
a hygienist to help treat his ongoing periodontal disease
(Id.). Thus, Defendants argue, there is no factual
support for Dent's allegations that any new developments
have occurred that justify his demands for injunctive relief.
Report and Recommendation
Report and Recommendation, Magistrate Judge Wilkerson agreed
with Defendants and concluded that nothing in Dent's
second motion for preliminary injunction changes the
Court's finding that he does not have a reasonable
likelihood of success on the merits of this case.
Furthermore, Dent has not shown he will suffer irreparable
harm when Dr. Burrell prescribed antibiotics and pain
medication at the March 5, 2018 exam. Prior to this exam,
Dent had not sought dental treatment since November 1, 2016.
And while Dent believes he has actinomycosis, he has
presented no evidence to support this self-diagnosis.
Therefore, Magistrate Judge Wilkerson recommended that
Dent's motion be denied.
Dent's objection to the Report and Recommendation, he
agrees that Dr. Burrell is trying to treat his pain and
infections, but argues the proper test to diagnose him cannot
be performed on site at Shawnee (Doc. 137). Dent takes issue
with the Court's disregard for his attempt to learn about
his gum disease and states that he brings the information to
the Court for the undersigned to research and examine herself
(Id.). Dent believes it defies logic that a dentist
would think an x-ray would show a deep tissue infection
(Id.). He also asserts that he has had gum disease,
abscesses, infections, and extractions for over 25 years,
meaning he has the experience to know there is something
seriously wrong (Id.). Dent again refers to the
numerous other inmates “almost dying” from
infections after being treated by Dr. Burrell and asks how
his medical judgment cannot be in question (Id.).
Finally, Dent objects to Magistrate Judge Wilkerson's
conclusions that he has no reasonable likelihood of success
on the merits of his claim and that he has not shown
irreparable harm. Dent asserts that he has been in constant
pain for almost two years, which constitutes irreparable
harm, and that he cannot present evidence of his
actinomycosis because the Court has refused to consider his
data and he has no counsel or expert to help him.
filed a response to Dent's objection on June 8, 2018
(Doc. 139). Dent filed a reply on June 18, 2018 (Doc.
144), in which he asks the Court to hold a “fair
evidentiary hearing with appointment of counsel consistent
with the precedent from the Seventh Circuit Court of
timely objections are filed, this Court must undertake a
de novo review of the Report and Recommendation. 28
U.S.C. 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b); SDIL-LR
73.1(b); Harper v. City of Chicago Heights, 824
F.Supp. 786, 788 (N.D. Ill. 1993); see also Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court
may then accept, reject, or modify the magistrate judge's
recommended decision. Harper, 824 F.Supp. at 788. In
making this determination, the Court must look at all of the
evidence contained in the record and give fresh consideration
to those issues to which specific ...