Allen v. Asselmeier

Filing 104

ORDER GRANTING IN PART AND MOOTING IN PART 61 Motion for Summary Judgment by Defendant Craig Asselmeier and FINDING AS MOOT 64 Motion to Dismiss filed by Defendant Kimberly Butler. Summary judgment is granted to both Defendants, and the Clerk o f Court is DIRECTED to enter judgment in favor of Defendants and against Allen. Additionally, Allen is hereby RESTRICTED from filing any papers in this matter that do not pertain to an appeal until he has paid his outstanding fees in full or the filing ban is otherwise lifted by Chief Judge Reagan in case number 15-cv-175-MJR. Signed by Judge Nancy J. Rosenstengel on 9/23/16. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RODERICK T. ALLEN,
Plaintiff,
vs.
CRAIG ASSELMEIER and
KIMBERLY BUTLER,
Defendants.

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Case No. 15-CV-334-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is currently before the Court on the Motion for Summary Judgment
filed by Defendant Craig Asselmeier on December 7, 2016 (Doc. 61) and the Motion to
Dismiss filed by Defendant Kimberly Butler on December 7, 2016 (Doc. 64).
INTRODUCTION
Plaintiff Roderick Allen, an inmate incarcerated at Menard Correctional Center,
filed this pro se action pursuant to 42 U.S.C. § 1983 on March 27, 2015, alleging he was
denied effective medical care for a dental infection (Doc. 1). More specifically, Allen
claims that since January 2015, Dr. Asselmeier refused to adequately treat pain and
swelling in his jaw and failed to prescribe effective antibiotics for an infection. Allen
alleges that Dr. Asselmeier has only recommended that his problematic teeth be
extracted. Following a threshold review of the complaint under 28 U.S.C. § 1915A, Allen
was permitted to proceed on one count of deliberate indifference in violation of the
Eighth Amendment against Craig J. Asselmeier, a dentist at Menard (Doc. 4). Kimberly
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Butler, the warden at Menard, was added as a Defendant in her official capacity only for
the purposes of injunctive relief (Doc. 4).
Allen requested to proceed in this matter in forma pauperis (“IFP”) (Doc. 7).
Because Allen has accumulated three “strikes” for previously filing frivolous lawsuits in
federal court, he could not proceed IFP unless he was in imminent danger of serious
physical injury (Doc. 4). 28 U.S.C. § 1915(g). The Court was skeptical of Allen’s
purported dental infection because Allen has made similar allegations in at least four
previous cases, all of which were dismissed as frivolous (Doc. 4). 1 Allen apparently
believes that his sister is paying Menard officials to harm or kill him to keep him from
receiving his share of the inheritance from their father (Doc. 4). To that end, Plaintiff has
accused prison dentists of cultivating and implanting bacteria in his mouth during a
tooth extraction in order to poison him and of allowing his infection to progress
uninhibited (Doc. 4). Nevertheless, the Court chose to give Allen the benefit of the doubt
and “rather than summarily dismissing this action as a frivolous extension of all those
other similar claims that have been dismissed as frivolous, the Court [accepted] for now
that Plaintiff is suffering from a dental infection that is serious enough to warrant
continued dental treatment over the course of at least three years, without improvement
and with progression to the jaw bone.” (Doc. 4). Based on the alleged pain and
progression of the infection, and the purported lack of treatment, the Court found that
the imminent danger standard was satisfied, and Allen was permitted to proceed IFP
(Docs. 4, 8). Allen was warned, however, that if the Court later determined that his claim
was frivolous, he would be banned from filing any civil rights cases in this Court (Doc.
1

The four previous cases are 11-1130-MJR; 12-936-GPM; 13-931-MJR; 14-348-JPG.

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4).
Since filing the Complaint, Allen has sought various forms of preliminary
injunctive relief related to his claim (Docs. 3, 14, 30, 76, 81, 82), all of which have been
denied (Docs. 4, 73, 102). Warden Butler seeks to dismiss the complaint, arguing that if
Allen’s allegations were insufficient to warrant imposition of a preliminary injunction,
then those allegations are also insufficient to establish that he was in imminent danger at
the time he filed his complaint, and he should not have been permitted to proceed IFP
(Docs. 64, 65).
Dr. Asselmeier seeks summary judgment both on the merits of Allen’s claim and
on Allen’s failure to exhaust his administrative remedies prior to filing suit (Docs. 61,
62). Allen was granted until March 24, 2016, to file responses to the pending motions
(Doc. 79), but he did not file his responses until May 11, 2016 (Docs. 100, 101). Despite
being tardy, the Court will still consider Allen’s responses.
FACTUAL BACKGROUND
For over seven years, Roderick Allen has had three broken and rotting
teeth—numbers 19, 30, and 31 (see Doc. 62-1). 2 At least four dentists, on at least nine
separate occasions between 2008 and 2014, have told Allen that the teeth need to be
removed and counseled Allen on the consequences of leaving the teeth in his mouth
(Doc. 62-1). 3 But Allen has steadfastly refused to have the teeth extracted (Doc. 62-1). At

2

Some of Allen’s dental records are unreadable. Because there appears to be no dispute as to
what the records contain, however, the Court is not requiring a typed copy of the notes.
3 The dentists are Dr. Overall, Dr. Henderson, Dr. Chapman, and Dr. Strow (Doc. 62-1). These
dentists recommended the removal of Allen’s teeth on May 20, 2008, November 18, 2008,
December 16, 2008, December 14, 2010, April 27, 2011, July 8, 2011, March 6, 2012, October 21,
2014, and November 17, 2014 (Doc. 62-1).

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times, Allen also has refused other dental care, including examinations, a biopsy, and
x-rays (Doc. 62-5 to 62-19). Instead, Allen wants to have his teeth treated with antibiotics,
which he repeatedly and routinely requests (Doc. 62-1). Allen has been informed a
number of times that antibiotics are not viable long-term treatment option for the pain he
experiences in his rotten teeth (Doc. 62-1; Doc. 62-21). On occasion, however, antibiotics
and pain relievers have been prescribed when there was an indication of infection in the
rotten teeth or the roots of the teeth (Doc. 62-20; Doc. 62-21, p. 4).
Allen also apparently believes that he has been suffering from gum disease for
over seven years (Doc. 62-1; Doc. 62-21). No dentist has found any clinical evidence,
however, that Allen has gum disease or any need for treatment with regard to his gums
(Doc. 62-21, p. 2; see also Doc. 62-1, p. 1).
Allen’s interactions with Dr. Asselmeier appear to be no different than his
interactions with previous dentists. When Allen first saw Dr. Asselmeier on January 9,
2015, he complained of pain in teeth 19, 30, and 31 (Doc. 62-21, p. 3; Doc. 62-1). After
taking two periapical x-rays and noting extensive decay, Dr. Asselmeier advised Allen
that the teeth “were not restorable” and needed to be extracted (Doc. 62-21, p. 3). Dr.
Asselmeier prescribed Clindamycin to head-off a possible infection and ordered an
additional x-ray (Id.) Allen refused the x-ray, however, and instead requested regular
appointments to acquire antibiotics in order to “prevent reinfection of broken teeth” (Id.)
Dr. Asselmeier next saw Allen on January 16th, at which time Allen once again refused
additional x-rays and teeth extractions (Doc. 62-21, pp. 3–4).
Dr. Asselmeier believes that antibiotics are not an appropriate treatment for

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Allen’s pain in his rotten teeth (Doc. 62-21). Dr. Asselmeier explains that while “[t]he
antibiotics may temporarily reduce pain as they eradicate any infection that has arisen in
the rotted teeth, they are not a long term solution” (Id. at p. 4). He further explains that
repeated antibiotic courses are not medically appropriate when there is no evidence of
infection because it only serves to kill off beneficial bacteria in the body and promote
antibiotic resistance (Id. at p. 5). Dr. Asselmeier believes that the appropriate treatment
for Allen’s pain is to have the rotten teeth extracted (Id. at p. 4-5).
DISCUSSION
A. Dr. Craig Asselmeier
Dr. Asselmeier seeks summary judgment both on the merits of Allen’s deliberate
indifference claim and on Allen’s failure to exhaust his administrative remedies prior to
filing suit (Docs. 61, 62). The Court will first address the argument on the merits of
Allen’s claim.
The standard applied to summary judgment motions under Federal Rule of Civil
Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is appropriate where the admissible evidence shows
that there is no genuine dispute as to any material fact and that the moving
party is entitled to judgment as a matter of law. A “material fact“ is one
identified by the substantive law as affecting the outcome of the suit. A
“genuine issue” exists with respect to any such material fact . . . when “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” On the other hand, where the factual record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party, there is nothing for a jury to do. In determining whether a genuine
issue of material fact exists, we view the record in the light most favorable
to the nonmoving party.
Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted).
In order to prevail on a claim for deliberate indifference to a serious medical need,
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there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex rel.
Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must
demonstrate that his medical condition was “objectively, sufficiently serious.” Greeno v.
Daley, 414 F.3d 645, 652-653 (7th Cir. 2005) (citations and quotation marks omitted).
Second, the plaintiff must demonstrate that the “prison officials acted with a sufficiently
culpable state of mind,” namely deliberate indifference. Greeno, 414 F.3d at 653.
Dr. Asselmeier does not dispute that Allen suffers from a serious dental
condition, so the Court will assume for the purpose of this analysis that Allen’s dental
pain and rotten teeth constitute a serious dental condition (see Doc. 62). See Board v.
Farnham, 394 F.3d 469, 480 (7th Cir. 2005) (“[W]e reiterate our view that ‘dental care is
one of the most important medical needs of inmates.’ In addition, a number of other
courts have also held that dental pain accompanied by various degrees of attenuated
medical harm may constitute an objectively serious medical need.”) (citations omitted).
Therefore the only question for the Court is whether Dr. Asselmeier acted with
deliberate indifference with respect to Allen’s purported gum disease and treating
Allen’s rotten teeth.
In order to show that prison officials acted with deliberate indifference, a plaintiff
must put forth evidence that the prison officials knew that the prisoner’s medical
condition posed a serious health risk, but they consciously disregarded that risk.
Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). “This subjective
standard requires more than negligence and it approaches intentional wrongdoing.” Id.;
accord Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (“Deliberate indifference is

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intentional or reckless conduct, not mere negligence.”); McGowan v. Hulick, 612 F.3d 636,
640 (7th Cir. 2010) (“[N]egligence, even gross negligence does not violate the
Constitution.”)
For a medical professional to be held liable under the deliberate indifference
standard, he or she must respond in a way that is “so plainly inappropriate” or make a
decision that is “such a substantial departure from accepted professional judgment,
practice, or standards,” that it gives rise to the inference that they intentionally or
recklessly disregarded the prisoner’s needs. Holloway, 700 F.3d at 1073; Hayes v. Snyder,
546 F.3d 516, 524 (7th Cir. 2008) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir.
2000)). In other words, a prison medical professional is “entitled to deference in
treatment decisions unless no minimally competent professional would have so
responded under those circumstances.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)
(quoting Sain, 512 F.3d at 894–95). See also Holloway, 700 F.3d at 1073 (“There is not one
‘proper’ way to practice medicine in prison, but rather a range of acceptable courses
based on prevailing standards in the field.” (quoting Jackson v. Kotter, 541 F.3d 688, 697
(7th Cir. 2008))).
Here, Allen claims that he suffers from an infected jawbone and gum disease,
however, there is simply no evidence that supports that claim. Instead, the available
evidence shows that Dr. Asselmeier, and every other dentist who examined Allen, never
observed any clinical sign of gum disease. It also shows that at times when signs of
infection

were

observed,

antibiotics

were

prescribed.

Allen’s

self-diagnosis,

unsupported by any medical evidence in the record, is not sufficient to withstand

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summary judgment. See Fitzgerald v. Greer, 324 F. App’x 510, 515 (7th Cir. 2009); Green v.
Senkowski, 100 F. App’x 45, 47 (2d Cir. 2004); Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir.
1994).
Allen also claims that he was given the choice between “continuous antibiotic
treatment” and extraction of his teeth, and he asserts that his teeth should be repaired
rather than extracted. But the record plainly refutes these claims. Allen has been told by
a number of dentists on a number of occasions that long-term antibiotics will not
alleviate his pain or restore his rotten teeth; the only viable treatment option is to have
the rotten teeth extracted. The question of whether one course of treatment is medically
appropriate or preferable to another is a “classic example of a matter for medical
judgment.” Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (quoting Estelle v. Gamble,
429 U.S. 97, 107 (1976)). And “[t]he federal courts will not interfere with a doctor’s
decision to pursue a particular course of treatment unless that decision represents [a]
significant a departure from accepted professional standards . . . .” Pyles v. Fahim, 771
F.3d 403, 409 (7th Cir. 2014). Given that Dr. Asselmeier’s decision to extract the teeth and
to not prescribe long-term antibiotics was explicitly endorsed by every other dentist who
examined Allen, there is simply no basis for finding that Dr. Asselmeier’s chosen course
of treatment was plainly inappropriate or a substantial departure from accepted medical
judgment. See Pyles, 771 F.3d at 411.
The evidence, when viewed in a light most favorable to Allen, demonstrates only
that Allen wanted different care than the prison dentists recommended. But Allen is not
entitled to “demand specific care” and his dissatisfaction and disagreement with Dr.

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Asselmeier’s suggested course of treatment does not establish deliberate indifference.
Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011); Johnson v. Doughty, 433 F.3d 1001, 1013
(7th Cir. 2006) (citations omitted); accord Pyles, 771 F.3d at 409. The pain and other
symptoms Allen is experiencing are a result of rotten teeth that no less than five dentists
have recommended extracting. Instead of following his doctors’ advice, Allen insists that
his symptoms should be managed with antibiotics, and he refuses even the most basic
prophylactic treatment or evaluations. It is clear that Allen is the author of his own
misery; his condition is a result of his own actions, not the inaction or indifference on the
part of Dr. Asselmeier.
The Court concludes that Allen’s deliberate indifference claim against Dr.
Asselmeier lacks an arguable basis in fact such that no reasonable person could suppose
it to have any merit. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). In other words, the claim is frivolous. Accordingly, Dr.
Asselmeier is entitled to summary judgment. In light of this conclusion, it is unnecessary
to consider Dr. Asselmeier’s alternative argument that Allen failed to exhaust his
administrative remedies.
B. Kimberly Butler
As previously mentioned, Kimberly Butler was added to this suit as a Defendant
for the sole purpose of perfecting any injunctive relief. Because Dr. Asselmeier is entitled
to judgment as a matter of law on Allen’s Eighth Amendment claim of deliberate
indifference, Defendant Butler is also entitled to summary judgment at this juncture.
Consequently, her Motion to Dismiss is moot and need not be addressed by the Court.

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C. Allen’s Access to his Dental X-Rays
The parties discuss whether Allen is entitled to view the x-rays that were taken of
his teeth. Neither party has presented any case law, nor is the Court aware of any, that
holds Allen has a constitutional right to view his medical records or any part of them. To
the extent that such a claim is made (and such a claim is not delineated in this Court’s
threshold order (Doc. 4)), it is without merit.
To the extent that Allen seeks copies of his x-rays as a discovery request (Doc.
101-2, p. 5), that request is improper and untimely. First, Allen seeks this discovery from
Warden Butler, but he has not made a showing that he served any request to produce his
x-rays upon Warden Butler prior to filing what amounts to be a motion to compel. Put
another way, Allen cannot compel production of a document that he has not first sought
through Federal Rule of Civil Procedure 34. Second, a subpoena is not necessary when
seeking documents from a party. Third, Allen has not filed the required affidavit or
declaration to support a Federal Rule of Civil Procedure 56(d) motion. Therefore, his
discovery request is denied.
CONCLUSION
For the reasons set forth above, the Motion for Summary filed by Defendant Craig
J. Asselmeier on December 7, 2016 (Doc. 61) is GRANTED in part and MOOTED in
part. The Motion to Dismiss filed by Defendant Kimberly Butler on December 7, 2016
(Doc. 64) is MOOT. The Clerk of Court is directed to enter judgment in favor of
Defendants and against Allen.
FILING BAN
Allen was warned that if the Court determined his deliberate indifference claim
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was frivolous, which it has, that a filing ban would be imposed (see Doc. 4). It has come
to the Court’s attention, however, that Chief Judge Michael J. Reagan already banned
Allen from filing any new civil cases in this District until his outstanding filing fees of
over $6,000.00 have been paid in full. Allen v. Engelage, Case No. 15-cv-175-MJR (S.D. Ill.
Aug. 18, 2016) (Doc. 15). The undersigned is going to take the filing ban one step further,
because Allen has a tendency to file frivolous post-judgment motions, and the Court
believes he is particularly likely to continue this exhibited tendency because he is not
allowed to bring any new civil suits for the time being. See Allen v. Bower, et al.,
13-931-MJR (S.D. Ill.); Allen v. Harrington, 13-725-GPM (S.D. Ill.); Allen v. Godinez, et al.,
12-936-GPM (S.D. Ill.); Allen v. Chapman, et al., 11-1130-MJR (S.D. Ill.).
Allen is hereby RESTRICTED from filing any papers in this matter that do not
pertain to an appeal until he has paid his outstanding fees in full or the filing ban is
otherwise lifted by Chief Judge Reagan. See. e.g., In re City of Chicago, 500 F.3d 582 (7th
Cir. 2007) (banning litigant from filing any papers in pending cases). Any papers
submitted either directly or indirectly by or on behalf of Allen in this case that do not
pertain to an appeal shall be returned unfiled. If the papers are filed electronically, they
will be stricken.
This ban means that Allen cannot file a motion to contesting this Order under
Federal Rule of Civil Procedure 59(e) or 60(b) (commonly referred to by prisoners as a
“motion to reconsider”) unless and until he has paid his outstanding fees in full. Allen’s
only other option for contesting this Order is to appeal to the Seventh Circuit. To do so,
he must file a notice of appeal in this Court within 30 days from the entry of judgment or

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order appealed from. FED. R. APP. P. 4(a)(1)(A). The current cost of filing an appeal with
the Seventh Circuit is $505.00. The entire $505.00 filing fee must be paid at the time the
notice of appeal is filed. FED. R. APP. P. 3(e). Because Allen has incurred three strikes, he
is barred from proceeding IFP on appeal, unless he is in imminent danger of serious
physical injury.
IT IS SO ORDERED.
DATED: September 23, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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