Allen v. Asselmeier

Filing 73

ORDER ADOPTING 45 Report and Recommendations and DENYING 14 Motion for TRO and Preliminary Injunction, DENYING 30 Motion to Advance and Reset, and DENYING 43 Motion for Court Appointment of Independent Dentist. Signed by Judge Nancy J. Rosenstengel on 1/15/16. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RODERICK T. ALLEN,

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Plaintiff,
vs.
CRAIG ASSELMEIER and
KIMBERLY BUTLER,
Defendants.

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

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson entered on July 14, 2015 (Doc. 8454).
Magistrate Judge Wilkerson recommends that Plaintiff Roderick Allen’s Motion for
Temporary Restraining Order and Preliminary Injunction (Doc. 14), Motion to Advance
and Reset (Doc. 30), and Motion for Court Appointment of Independent Dentist (Doc.
43) be denied. For the reasons set forth below, Magistrate Judge Wilkerson’s Report and
Recommendation is adopted in its entirety.
PROCEDURAL BACKGROUND
Plaintiff Roderick Allen is an inmate in the Illinois Department of Corrections at
Menard Correctional Center (“Menard”). He filed this pro se lawsuit pursuant to
42 U.S.C. § 1983 alleging he was denied effective medical care for a dental infection in
violation of the Eighth Amendment. Allen has “struck out” under the Prison Litigation
Reform Act, but he was allowed to proceed under the imminent danger exception in
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28 U.S.C. § 1915(g) (Doc. 4). Plaintiff then filed his Motion for Temporary Restraining
Order and Preliminary Injunction (Doc. 14). Plaintiff alleges that he has an infection in
his mouth that has spread to his jaw bone causing deterioration of that bone as well as
pain and swelling. He states that he is not being given effective antibiotics that would
resolve the infection. Plaintiff claims that his dentist, Defendant Dr. Asselmeier, refuses
to prescribe the antibiotics unless Plaintiff agrees to have the involved teeth extracted.
Magistrate Judge Wilkerson held a hearing on May 15, 2015; Plaintiff appeared by
videoconference, and Defendants appeared by counsel (Doc. 28). Defendants were
directed to submit a brief after they had reviewed Plaintiff’s medical record (Doc. 29),
and they did so (Doc. 31). Plaintiff was instructed to submit supplemental materials
(Doc. 29), and he submitted a Motion to Advance and Reset, in which he includes a
number of exhibits and seeks advancement of trial (Doc. 30). Plaintiff also filed a
“notice” indicating that he will refuse to accept medical care from Defendant because he
believes it will expose him to “substantial risk of suffering great bodily harm or death”
(Doc. 39). Finally, Plaintiff submitted a motion seeking appointment of an independent
dentist to evaluate his concerns (Doc. 43).
On July 14, 2015, Magistrate Judge Wilkerson issued the Report and
Recommendation currently before the Court (Doc. 45). Based upon the evidence before
the Court, Magistrate Judge Wilkerson concluded that Plaintiff failed to meet the
threshold burden for a preliminary injunction. He further concluded that Plaintiff failed
to show that he is suffering irreparable harm or that he has no adequate remedy in law.
Objections to the Report and Recommendation were due on July 31, 2015. Because of

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lockdowns at Menard, Plaintiff requested and was given two 30-days extensions to file
his objections, which was granted (Docs. 47, 48, 50, 51). Plaintiff then requested a third
extension of time, stating he was unable to prepare his objections because he spent all of
his time and legal supplies working on an appellate case (Doc. 52). Plaintiff was given
until November 6, 2015, to file his objections and warned that no further extensions
would be granted. Plaintiff then claimed that he needed the Court to provide him with
another copy of the Report and Recommendation (Doc. 54). Magistrate Judge Wilkerson
denied Plaintiff’s request reasoning that it appeared to be an attempt to extract a further
extension of time to file objections in spite of the admonishment that none would be
given (Doc. 57). The November 6th deadline passed with no submission from Plaintiff.
Then, on November 16th, Plaintiff requested a fourth extension of time to file his
objections (Doc. 60). That request was denied (Doc. 66). Consequently, Plaintiff has not
filed any objections to the Report and Recommendation.
DISCUSSION
Where timely objections are filed, the court must undertake a de novo review of
the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);
SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see
also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). Where neither timely nor specific
objections to the Report and Recommendation are made, however, the court need not
conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S.
140 (1985). Instead, the court should review the Report and Recommendation for clear
error. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). The court may then

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“accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1).
The undersigned has carefully reviewed the briefs and exhibits submitted by the
parties, as well as Magistrate Judge Wilkerson’s Report and Recommendation.
Following this review, the undersigned fully agrees with the findings, analysis, and
conclusions of Magistrate Judge Wilkerson and adopts the Report and Recommendation
in its entirety.
The evidence shows that Plaintiff’s dental problems go back at least to 2008 (Doc.
31-1). Early that year, Plaintiff sought dental care for what he believed was gum disease
(see Doc. 31-1, p. 1). The dentist advised Plaintiff that there was no evidence of gum
disease, however, three of his teeth (#19, #30, and #31) were broken, infected, and
needed to be removed (Id.). But Plaintiff refused to have his teeth removed (Id.). Since
then, Plaintiff has been repeatedly advised of the need to have his teeth removed, but he
has steadfastly refused (see Doc. 31-1). In fact, from 2008 to the present, Plaintiff has seen
a dentist on at least fourteen occasions and refused to have his teeth removed at least
twenty times (see Doc. 31-1). He was prescribed at least four courses of different
antibiotics since 2011, but told that continued antibiotic treatment was not a “viable
treatment” when the three teeth needed to be extracted (Doc. 31-1, p. 4). Nevertheless,
Plaintiff continues to demand antibiotics and cites the dentist’s failure to prescribe them
as the reason he needs a preliminary injunction.
When a party seeks a preliminary injunction he “must show that [he] is
reasonably likely to succeed on the merits, [he] is suffering irreparable harm that

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outweighs any harm the non-moving party will suffer if the injunction is granted, there
is no adequate remedy of law, and an injunction would not harm the public interest.”
Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). In order to succeed on the
merits of his claim, Plaintiff must show that a prison official knew that a medical
condition posed a serious risk to his health yet responded ineffectually or not at all.
Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). In the context of
medical professionals, this standard also has been described as the ‘professional
judgment’ standard.” Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008). This means in order
for a prison medical professional to be held liable for deliberate indifference, his or her
treatment decisions must be “such a substantial departure from accepted professional
judgment, practice, or standards, as to demonstrate that the person responsible actually
did not base the decision on such a judgment.” Sain, 512 F.3d at 895. 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).
Here, the medical records demonstrate that Plaintiff has regularly been seen by a
dentist and repeatedly offered an extraction procedure. Removing broken and infected
teeth is quite obviously an appropriate treatment. As Magistrate Judge Wilkerson noted,
the fact that Plaintiff wants a different course of treatment is not enough to prove an
Eighth Amendment violation. See, e.g., Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.
2006) (“Mere dissatisfaction or disagreement with a doctor’s course of treatment is

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generally insufficient.”)
Plaintiff’s medical records also fail to support his assertion of irreparable harm
absent injunctive relief. Plaintiff has refused the dental treatment offered to him on
approximately twenty occasions and has notified the Court that he will not seek dental
care from Dr. Asselmeier in the future (Doc. 39). Thus, as Magistrate Judge Wilkerson
stated, Plaintiff is causing the harm he is suffering, and an injunction would not cure that
conduct.
In sum, the Court finds no justification for the “extraordinary and drastic
remedy” of injunctive relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The Court
also sees no reason to advance the trial as requested by Plaintiff for the reasons stated by
Magistrate Judge Wilkerson in the Report and Recommendation (Doc. 45, p. 7).
CONCLUSION
Accordingly, Magistrate Judge Wilkerson’s Report and Recommendation (Doc.
45) is ADOPTED in its entirety. Plaintiff Roderick Allen’s Motion for Temporary
Restraining Order and Preliminary Injunction (Doc. 14), Motion to Advance and Reset
(Doc. 30), and Motion for Court Appointment of Independent Dentist (Doc. 43) are
DENIED.
IT IS SO ORDERED.
DATED: January 15, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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