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Winger v. Baldwin

United States District Court, S.D. Illinois

January 10, 2020

MARK WINGER, #K97120, Plaintiff,



         Mark 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. (Id.).

         On May 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 2018.

(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).

         Again, 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.).

         The 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).

         Amended Complaint

         Federal Rule of Civil Procedure 15(a) provides that leave to amend should be freely given when justice so requires. Winger's motion is timely[1] 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.[2] The Court will screen the proposed Third Amended Complaint in accordance with this statute in conjunction with its consideration of Winger's Motion.

         Generally, 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 care.

         Winger 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.

         Finally, 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.

         Upon 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.

         As to 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 ...

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