United States District Court, C.D. Illinois
MERIT REVIEW- AMENDED COMPLAINT
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE
proceeding pro se, and confined at the Dixon
Correctional Center, files an amended complaint under 42
U.S.C. § 1983, alleging deliberate indifference to his
serious dental needs at the Hill Correctional Center
(“Hill”). The case is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. In reviewing
the amended 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
prior complaint, Plaintiff revealed that he had asserted lack
of dental treatment in a prior case, Jones v Wexford, et
al., No. 13-5767 (N.D. Ill. Aug. 13, 2013). A settlement
had been released in that case under which Plaintiff was to
be evaluated and, if necessary, to be provided teeth
cleaning, gum scaling, and a partial denture. On November 15,
2016 the parties reported that payment had been received and
the settlement was concluded. On May 4, 2018, subsequent to
the settlement, Plaintiff now proceeding pro se,
filed a motion to set aside the judgment. The Court denied
the request on August 15, 2018, finding “[t]his case
was dismissed with prejudice effective 11/15/16…No
further relief is available in this case.”
Jones, No. 13-5767 at [ECF 164]. Here, the Court
conducted a merit review of Plaintiff's initial
complaint, finding that while it did not have jurisdiction to
enforce the settlement in Jones, it did have
jurisdiction to consider Plaintiff's claims after his
July 28, 2017 arrival at Hill.
initial complaint, Plaintiff asserted that he had not
received the dental care contemplated in the earlier
settlement, most notably teeth scaling, root planing, and
gingivectomy, a surgical trimming of the gums. In his amended
complaint, Plaintiff reasserts his claim as to suffering
serious periodontal gum disease which, if not treated, will
result in progressive bone loss, tooth loss, unnecessary pain
and suffering and “possibly death.” Plaintiff
requests only “preventative care” and an
evaluation by an outside periodontist to determine the status
of the periodontal disease and bone loss.
believes that preventative dental care in the form of regular
teeth cleanings is necessary to manage the gum disease. He
complains that there is no dental hygienist on staff at Hill,
and no program for inmates to receive regular teeth cleaning.
Plaintiff claims to suffer “excruciating pain”
which, he appears to believe, would be alleviated by having
his teeth cleaned.
17, 2018, Plaintiff was evaluated by Defendant Dentist Dr.
Strow, identified as a Wexford employee. Dr. Strow determined
that he had no cavities but had some plaque buildup at the
gum line. Dr. Strow scraped plaque from Plaintiff's
teeth, but allegedly not from the gum line itself. Plaintiff
saw Defendant again on September 4, 2018 and attempted to
give Defendant a copy of the Jones settlement
agreement, apparently requesting that Defendant provide the
delineated services. Defendant Strow refused to accept the
September 14, 2018, Plaintiff submitted a sick call request
for a “periodontal gum disease checkup” to which
he received no response. On September 19, 2018, he submitted
a second request, complaining that his gums were inflamed and
chronically infected, causing him to have a bad order in his
mouth. Plaintiff later spoke with Defendant Strow's
assistant who advised him that Defendant Strow had, indeed,
performed a periodontal examination. Plaintiff disputes this.
complained to Defendant Warden Dorethy and Defendant Williams
the Assistant Warden of Programs. He claims that Defendant
Williams had a duty to a ensure that there was a dental
hygienist on staff at Hill. He also claims that Defendant
Williams failed to ensure that Plaintiff received the
treatment he wanted, allegedly stating that he could not make
Dr. Strow clean Plaintiff's teeth.
filed several related grievances which were referred to
Defendant Strow. Defendant Strow responded, indicating that
while other institutions provided regular dental cleanings,
this was not manDated: Hill. Plaintiff was advised that he
could put in for a transfer to another institution which had
“established, dental hygiene services.”
also asserts a claim against Wexford, asserting that Wexford
has a contractual obligation to have a hygienist on staff at
Hill. He cites a monitor report from, Lippert v.
Ghosh, No. 10-4603 (N.D.Ill. July 23, 2010) to establish
that there is a lack of adequate dental care throughout the
IDOC system. This report has been characterized by one court
as “a collection of anecdotes from prisons around the
country, compiled by a private organization called Private
Corrections Working Group.” Boyce v. Wexford Health
Sources, Inc., No. 15-7580 (N.D.Ill. April 24, 2017),
2017 WL 1436963. It does not support, however, that Wexford
may be liable for a constitutional injury in this case, as it
appears that IDOC had not contracted with Wexford to provide
“established, dental hygiene services” at Hill.
Eighth Amendment safeguards the prisoner against a lack of
medical care that may result in pain and suffering which no
one suggests would serve any penological purpose.”
Arnett v. Webster, 658 F.3d 742, 750 (7th Cir.
2011)(internal quotations and footnote omitted). The Seventh
Circuit has held that, “dental care is one of the most
important medical needs of inmates.” Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001) (citation
omitted). A dental condition may be “objectively
serious” and the failure to provide needed dental
treatment may rise to the level of deliberate indifference.
Id. at 593. To successfully plead deliberate
indifference, Plaintiff must establish that he had an
objectively serious medical condition; and that Defendants
were deliberately indifferent to that it. Arnett,
658 F.3d at 750. Prisoners do not, however, have an
entitlement to “demand specific care” or
“the best care possible, ” but only that which is
reasonable to avoid a substantial risk of serious harm.
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Plaintiff's initial complaint requested various treatment
modalities, his amended complaint requests
“preventative care” and evaluation by an outside
periodontist. In reviewing the case law, however, it is clear
that there is no established constitutional right to routine
dental care, including teeth cleaning. Taylor v.
Christain, 42 F.3d 1392 (7th Cir. 1994) (dismissing as
frivolous a claim for routine dental cleaning). See
also, Jackson v. Lane, 688 F.Supp. 1291 (N.D.
Ill. 1988) (claim that there was not a hygienist at the
facility for purposes of performing inmate teeth cleanings
“does not-repeat not-state an Eighth Amendment
dental care need only be provided where there is an
“ongoing serious dental problem.” Taylor
v, 42 F.3d at *1. In his amended complaint Plaintiff
asserts that he should be referred to an outside periodontist
to determine the status of his periodontal disease and the
cause of his pain and mouth order. As a result, Plaintiff may
proceed on a deliberate indifference claim against Defendant
Strow. While Plaintiff implicates Defendants Dorethy and
Williams for the lack of a dental hygienist and lack of
referral to a periodontist, he does not assert that either
had the authority to enter into a contract for these
services, or to refer him to an outside periodontist. See
McGill v. Duckworth, 944 ...