United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
Winger filed this civil rights action pursuant to 42 U.S.C.
§ 1983 for federal and state law deprivations that
allegedly occurred during his incarceration in the Illinois
Department of Corrections (“IDOC”) between 2012
and 2018. (Doc. 1). The Complaint addressed five separate
incidents against defendants at multiple institutions.
1, 2019, the Court severed the claims arising from four
incidents into separate cases. (Doc. 8). This case focuses on
a fifth incident involving the denial of dental care for
Winger's loose crown at Menard Correctional Center
(“Menard”) in 2018. The Complaint was dismissed
without prejudice, and Winger was granted leave to file a
First Amended Complaint to address his dental claims.
(Id.). Following an initial screening of the First
Amended Complaint pursuant to 28 U.S.C. § 1915A, Winger
was allowed to proceed with the following counts:
Count 1: Eighth Amendment deliberate indifference
claim against State Defendants John Baldwin and Louis Shicker
for allowing inadequate staffing, leadership vacancies, and
insufficient sick call procedures that caused the delay
and/or denial of dental care for Plaintiffs
loose crown at Menard in 2018.
Count 2: Eighth Amendment deliberate indifference
claim against Dr. Newbold and Colleen Runge for delaying or
denying dental care for Plaintiff s loose crown at Menard in
(See Docs. 12, 25, 74). Winger submitted a Motion
for Leave to File a Second Amended Complaint on September 13,
2019, which the Court denied without prejudice for failure to
comply with Local Rule 15.1. (Docs. 58, 64).
on December 17, 2019, Winger filed another Motion for Leave
to File Third Amended Verified Complaint, in which he brings
claims against an additional defendant, Dr. Asselmeier and
previously dismissed defendants, Pritzker and Rauner, as well
as modifies his request for relief. (Doc. 91). Defendant Dr.
Newbold filed a Response to the motion arguing that the Court
“may deny leave to file an amended complaint in the
case of ‘undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment…'”
(Doc. 95, p. 2) (quoting Airborne Beepers & Video,
Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th
Cir. 2007)(citations omitted)). Because Winger attempts in
his proposed Third Amended Complaint to bring claims
previously dismissed and requests permission to bring a class
action, also previously denied, and such claims are not
underlined, Dr. Newbold argues that the Motion should be
denied. (Id.). If the Court grants Winger's
leave to file his Third Amended Complaint, Dr. Newbold
requests the Court to conduct a preliminary review under 28
U.S.C. § 1915A. (Id.).
Court now considers Winger's motion to amend, as well as
other pending motions-Motion for Sanctions (Doc. 82), Motion
for Reconsideration (Doc. 83), and Motion for Preliminary
Injunction (Doc. 96).
Rule of Civil Procedure 15(a) provides that leave to amend
should be freely given when justice so requires. Winger's
motion is timely and complies with Federal Rule of Civil
Procedure 15(a)(1). While the Court acknowledges that
Winger's proposed amended complaint does not underline
material that was previously pled and dismissed by the Court,
Winger has underlined claims that are “new
material” to this case, and the Court considers the
Motion to Amend and the proposed Third Amended Complaint
properly filed. Nonetheless, the Third Amended Complaint is
still subject to review under 28 U.S.C. §
1915A. The Court will screen the proposed Third
Amended Complaint in accordance with this statute in
conjunction with its consideration of Winger's Motion.
the allegations set forth in the Court's Merit Review
Order of the First Amended Complaint (Doc. 12) remain
substantially similar; thus, the Court declines to recount
the allegations set forth in the Third Amended Complaint.
Winger adds claims of deliberate indifference, however,
regarding his dental treatment against dentist Dr.
Asselmeier. He alleges that Dr. Asselmeier examined him on
multiple occasions after the crown fell off of his tooth.
When Winger told Dr. Asselmeier that he wanted the crown
replaced, Dr. Asselmeier told him that IDOC does not perform
dental crown procedures. Winger claims that Dr. Asselmeier
misdiagnosed his tooth as being unrestorable due to deep
decay. After Winger was transferred to Western Illinois
Correctional Center (“Western”), he was seen by
dentist Dr. Cantino, who informed him that his tooth did not
in fact have decay and was fully restorable with a crown.
Winger states that Dr. Asselmeier's misdiagnosis and
failure to replace the crown has caused continued pain and
suffering and prevented him from obtaining adequate dental
adds allegations to state that the systemic deficiencies in
medical and dental care are not isolated to his time at
Menard, but are ongoing throughout all IDOC facilities. These
deficiencies in care include IDOC's policy of not
performing crown placement procedures. He also restates his
claims against Bruce Rauner, former governor, and J.D.
Pritzker, current governor.
Winger clarifies that he is seeking injunctive relief to
replace and restore his stainless steel crown or receive an
implant to repair the tooth that was damaged because of the
conduct of Dr. Newbold, Colleen Runge, and Dr. Asselmeier. He
requests compensatory and punitive damages against Runge,
Newbold, and Asselmeier and injunctive and declaratory relief
from Pritzker, Rauner, Baldwin, and Shicker to fix the
healthcare system through all IDOC facilities.
review of the Third Amended Complaint, the Court finds that
the additional facts pled do not change the claims brought in
Count 1. Although he claims that the healthcare system puts
him and “all other inmates throughout Illinois prisons,
including Menard, at risk of pain, injury and death”,
his allegations of constitutional violations for system
practices that resulted in the delay or denial of treatment
for his loose crown pertain only to his time at Menard.
Winger also does not provide any additional details that
implicate the former or current governor in any decision
regarding Winger's dental care or the policies he now
challenges. Therefore, Rauner and Pritzker remain dismissed
from this suit. See Sanville v. McCaughtry, F.3d
724, 740 (7th Cir. 2001). For these reasons, Count 1 remains
unchanged and shall proceed against Baldwin and Shicker.
Count 2, the allegations that Dr. Newbold and Colleen Runge
delayed prompt repair of Winger's loose crown resulting
in Winger losing the crown remain substantially the same and
support a deliberate indifference claim. (See Doc.
12, p. 4). Winger's additional claims that Dr. Asselmeier
left his jagged tooth untreated and misdiagnosed as ...