Talley v. Butler et al

Filing 14

MERIT REVIEW ORDER entered by Judge Michael M. Mihm on 4/27/2017. IT IS THEREFORE ORDERED: 1) Plaintiff is given leave 30 days in which to replead his deliberate indifference claim that Doe Defendant #2 improperly filled his tooth on June 28, 2016 an d that Defendants Butler, Korte, Shoemaker, Meagason, and Hobrock failed to provide pain medication or referral to a specialist. All other claims are DISMISSED. Plaintiffs amended complaint is to be captioned "Amended Complaint" and is to s tand complete on its own without reference to any prior pleading. 2) The Doe Defendant #1 is DISMISSED for Plaintiff's failure to state a claim against her. The Clerk is to TERMINATE this Defendant as a party. 3) Plaintiff's petition for in forma pauperis status 3 is DENIED as he is a 3-striker and has failed to allege imminent danger of serious physical harm. Plaintiff will be given 14 days in which to pay the $400 filing fee. The failure to do so will result in the dismissal of this case. 4) Plaintiff's Motion for Recruitment of pro bono counsel 6 and Motion to Stay 12 are DENIED, with leave to reassert should he pay the filing fee and file an amended complaint. SEE FULL WRITTEN ORDER.(SL, ilcd)

E-FILED

Thursday, 27 April, 2017 04:06:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DURWYN TALLEY,

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Plaintiff,
v.
MEDICAL DIRECTOR, BUTLER, et al.,
Defendants.

No.: 16-cv-3327-MMM

MERIT REVIEW ORDER
Plaintiff, proceeding pro se, pursues a § 1983 action for deliberate indifference to his
serious medical needs at the Western Illinois Correctional Center. The case is before the Court
for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the 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, the-defendant-unlawfully-harmed-me
accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Plaintiff has filed 20 lawsuits and has accumulated four strikes. Talley v Gongockey, No.
13-1112 (C.D. Ill Nov. 18, 2013); Talley v Reardon, No. 14-2251 (C.D. Ill. Feb. 2, 2015);
Talley v Williams, Case No. 14-3291 (C.D. Ill. July 14, 2015) and Talley v Clerk of Court, No.
15-5323 (N.D. Ill. June 19, 2015). Plaintiff has filed this latest complaint and a petition to
proceed in forma pauperis, without prepayment of the filing fee [ECF 3]. Pursuant to 28

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U.S.C.§1915(g), a plaintiff may not proceed in forma pauperis if he has accumulated three or
more strikes unless “under imminent danger of serious physical injury.”
Plaintiff names Warden Korte, Medical Director Butler, Healthcare Supervisor
Shoemaker, Cindy Hobrock, Lt. Meagason and two John Doe dentists. Plaintiff alleges that he
had a hole in an upper right tooth and sent numerous requests in January and February, 2016, to
be seen by a dentist. In February 2016, he was seen by a female dentist who provided him a
temporary filling. Plaintiff alleges that she placed the filling “without cleaning it out or without
giving him an x-ray.”
Plaintiff asserts that the pain in his tooth returned several weeks later accompanied by
swelling of the gum. He also claims that an upper left tooth broke and it was several months
before he was seen by the dentist. On an unidentified date in June 2016, the same female dentist
x-rayed Plaintiff’s teeth and scheduled him for a filling.
On June 28, 2016, Plaintiff’s tooth was filled by a male dentist who “insisted on shooting
him up with Novocain...” Plaintiff claims that the dentist drilled his tooth, pulled part of his
nerve out of the gum and into the drilled tooth, damaged the tooth next to it. Plaintiff claims that
the doctor used too much Novocain as he was numb for approximately 8 hours. He claims that
he has had heart pain ever since, and that the amount of Novocain used could have caused his
death. He also claims that he had pain every time he chewed on the drilled tooth, and that it was
sensitive to hot, cold and air. These symptoms appear to have resolved though Plaintiff claims
that he now experiences excruciating pain and nerve pain in his teeth.
Plaintiff complained of the alleged over-use of Novocain to Defendants Butler, Korte,
Shoemaker, Meagason and Hobrock. Plaintiff claims that these Defendants disregarded his

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serious medical needs, failed to provide him with pain medication and failed to refer him to a
specialist.
While Plaintiff names the female dentist, his claims against her are that she did not clean
or x-ray the tooth prior to placing a temporary filling in February 2016. He states that this
dentist saw him again in June 2016, undertook x-rays and scheduled him for a filling which was
done by another dentist on June 28, 2016. These assertions fail to allege that Plaintiff suffered
an excessive risk to his health which Defendant disregarded. It also fails to assert that Plaintiff
suffered any harm as a result of Defendant’s actions. Greeno v. Daley, 414 F.3d 645, 653 (7th
Cir. 2005). Doe Dentist #1 is DISMISSED.
Plaintiff claims that the male dentist, John Doe Dentist #2, was deliberately indifferent
for drilling his tooth to the extent that Plaintiff experienced pain upon chewing and was sensitive
to hot, cold and air. As noted, Plaintiff is a 3-striker and may proceed in forma pauperis only if
in imminent danger of serious physical harm. The requirement that the danger be “imminent” is
meant as “an escape hatch for genuine emergencies…” Lewis v. Sullivan, 279 F.3d 526, 531 (7th
Cir. 2002). It is to be asserted if “time is pressing” and “a threat ... is real and proximate.”
Heimermann v Litxcher, 337 F3d 781 (7th Cir. 2003). To be imminent, the harm must be
occurring “at the time the complaint is filed.” Ciarpagini v. Saini, 352 F3d 328, 330 (7th Cir.
2003). In addition to being imminent, the danger must also involve “serious physical injury.”
28 U.S.C. § 1915(g). Courts are to deny a 3-strikes plaintiff leave to proceed in forma pauperis
“when prisoner's claims of imminent danger are conclusory or ridiculous.” Ciarpagini at 330.
It appears that the pain upon chewing and tooth sensitivity resolved as, at the time of
filing, Plaintiff no longer complained of these particular symptoms. Plaintiff states a colorable
claim of deliberate indifference against Doe Defendant #2 for the manner in which he drilled his

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tooth. However, this claim occurred on June 28, 2016, and the associated symptoms had
resolved by the time Plaintiff filed his December 20, 2016 complaint. As a result, the complaints
of pain on chewing and tooth sensitivity were not occurring “at the time the complaint [was]
filed.” Ciarpagini at 330. This claim against Doe Defendant #2 will be allowed to procced but
Plaintiff will not be granted leave to proceed in forma pauperis.
While Plaintiff did not complain of chewing pain and sensitivity when he filed his
complaint, he did complain of “excruciating pain” and “nerve pain” in his “teeth”. He does not,
however, claim to have pain in the tooth which was drilled and might well have pain in all of his
teeth. He does not claim that he sought, and was refused treatment, for this pain. Plaintiff does
not indicate when this pain began and does not allege that it resulted from the care rendered by
Doe Dentist #2. As a result, Plaintiff fails to state a claim against Doe Dentist #2 regarding the
excruciating nerve pain he is currently experiencing.
Plaintiff’s remaining claim against Doe Dentist #2 is that he used too much Novocain
which caused Plaintiff to be numb for eight hours and left him with residual “heart pain. ” The
Court finds Plaintiff’s unsupported claim that his heart pain is related to the use of dental
Novocain “conclusory or ridiculous.” Ciarpagini at 330. This claim is DISMISSED.
As to Defendants Butler, Korte, Shoemaker, Meagason, and Hobrock, Plaintiff alleges
that they were deliberately indifferent as they knew of the Doe Dentist’s over-use of Novocain
but failed to provide Plaintiff pain medication or referral to a specialist. Plaintiff does not claim
that he asked them for pain medication or that they had the authority to prescribe him pain
medication. Furthermore, he fails to reveal the reason for which he needed referral to a
specialist. Plaintiff will be given an opportunity to replead this claim with more specificity. He

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will not be granted leave to proceed in forma pauperis as these complaints arose on June 28,
2016, and were not occurring at the time the complaint was filed. Ciarpagini at 330.
IT IS THEREFORE ORDERED:
1)

Plaintiff is given leave 30 days in which to replead his deliberate indifference

claim that Doe Defendant #2 improperly filled his tooth on June 28, 2016 and that Defendants
Butler, Korte, Shoemaker, Meagason, and Hobrock failed to provide pain medication or referral
to a specialist. All other claims are DISMISSED. Plaintiffs amended complaint is to be
captioned “Amended Complaint” and is to stand complete on its own without reference to any
prior pleading.
2)

The Doe Defendant #1 is DISMISSED for Plaintiff’s failure to state a claim

against her. The Clerk is to TERMINATE this Defendant as a party.
3)

Plaintiff's petition for in forma pauperis status [3] is DENIED as he is a 3-striker

and has failed to allege imminent danger of serious physical harm. Plaintiff will be given 14
days in which to pay the $400 filing fee. The failure to do so will result in the dismissal of this
case.
4)

Plaintiff’s Motion for Recruitment of pro bono counsel [6] and Motion to Stay

[12] are DENIED, with leave to reassert should he pay the filing fee and file an amended
complaint.

_4/27/2017
ENTERED

s/Michael M. Mihm
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

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