Clark v. Furlong

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 1/25/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOE CLARK,
No. K57170,
Plaintiff,
vs.
D. FURLONG,
Defendant.

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Case No. 15-cv-00562-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff, Joe Clark, is an inmate currently housed in the Rushville Treatment and
Detention Center. Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of
his constitutional rights with respect to the denial of dental care while he was housed at Tamms
Correctional Center in this judicial district.
Plaintiff’s amended complaint (Doc. 5) is now before the Court for a preliminary review
pursuant to 28 U.S.C. § 1915A. The Court is required to dismiss any portion of the pleading that
is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for
money damages from a defendant who by law is immune from such relief.

28 U.S.C. §

1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
According to the amended complaint (Doc. 5), Plaintiff was housed at Tamms
Correctional Center between December 7, 2005, and December 28, 2012. During that seven year
period, his repeated requests to have his teeth cleaned made to the prison dentist, Dr. D. Furlong,
were rejected. Dr. Furlong explained that routine dental cleaning was not provided.
Plaintiff describes his teeth becoming progressively discolored over time—“heavy,
extremely dark stains” (Doc. 1, p. 4). The amended complaint also states that, in addition to not
providing dental cleaning, Dr. Furlong failed to provide “necessary dental care” (Doc. 5, p. 4).
After being transferred from Tamms, Plaintiff was seen by a dentist and diagnosed with
advanced periodontal disease and heavy tarter, attributed to not receiving professional cleanings
for years. Plaintiff states that he has suffered “severe bone loss” (Doc. 5, p. 4). He seeks
declaratory judgment and compensatory damages.
Based on the allegations in the complaint, the Court finds it convenient to frame the pro
se action as follows:
Count 1: Dr. Furlong was deliberately indifferent to Plaintiff’s serious
medical need(s), in violation of the Eighth Amendment.
Discussion
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment.

U.S. CONST., amend. VIII. See also Berry v.

Peterman, 604 F.3d 435, 439 (7th Cir. 2010).

Eighth Amendment protection extends to

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conditions of confinement that pose a substantial risk of serious harm, including health and
safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012). More
specifically, the Eighth Amendment’s prohibition against cruel and unusual punishment requires
the state to provide adequate medical care to incarcerated prisoners. Estelle v. Gamble, 429 U.S.
97, 104 (1976). However, “a prison official cannot be found liable . . . unless the official knows
of and disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
An inmate is not entitled to a specific treatment, or even the best care, but only
reasonable measures to meet a substantial risk of serious harm. Willis v. Washington, 172 F.3d
54 (7th Cir. 1999) (citing Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997)).

Proving

deliberate indifference, however, requires more than a showing of negligent or even grossly
negligent behavior. Farmer, 511 U.S. at 835. Rather, the corrections officer must have acted
with the equivalent of criminal recklessness. Id. at 836–37. Once prison officials know about a
serious risk of harm, they have an obligation “to take reasonable measures to abate it,” even if
harm is not averted.

Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006); see also Dale v.

Poston, 548 F.3d 563, 569 (7th Cir. 2008).
A failure to provide prophylactic treatment, such as routine dental cleaning, alone, is not
a violation of the Eighth Amendment. See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002).
However, the amended complaint describes Plaintiff’s teeth becoming progressively discolored
and Dr. Furlong still refusing to clean Plaintiff’s teeth or provide “necessary dental care.” Thus,
construing the facts in the light most favorable to Plaintiff, Dr. Furlong may have been

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deliberately indifferent to Plaintiff’s need for treatment—begging the question whether
Plaintiff’s discolored teeth presented a serious medical condition.
According to the well-respected Mayo Clinic:
Periodontitis . . . is a serious gum infection that damages the soft tissue and
destroys the bone that supports your teeth. Periodontitis can cause tooth loss or
worse, an increased risk of heart attack or stroke and other serious health
problems.
Periodontitis is common but largely preventable. Periodontitis is usually the result
of poor oral hygiene. Brushing at least twice a day, flossing daily and getting
regular dental checkups can greatly reduce your chance of developing
periodontitis.
Http://www.mayoclinic.org/diseases-conditions/periodontitis/basics/definition/con-20021679.
Therefore, at this early juncture, Plaintiff has stated a colorable Eighth Amendment claim, albeit
a tenuous claim.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 shall PROCEED
against Defendant DR. D. FURLONG.
The Clerk of Court shall prepare for Defendant DR. D. FURLONG: (1) Form 5 (Notice
of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service
of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this
Memorandum and Order to Defendant’s place of employment. Plaintiff acknowledges that he is
unaware of Dr. Furlong’s current place of employment, since Tamms has closed. The Clerk
shall, therefore, use its best efforts to identify an address for Furlong.
If the Clerk of Court cannot identify an address for Defendant Furlong, or if Defendant
fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days
from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service
on Defendant. Depending on the circumstances, Furlong may be required to pay the full costs of
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formal service, to the extent authorized by the Federal Rules of Civil Procedure.
If Defendant no longer cannot be located, the Illinois Department of Corrections shall
furnish the Clerk with Defendant’s current work address, or, if not known, Defendant’s lastknown address. This information shall be used only for sending the forms as directed above or
for formally effecting service. Any documentation of the address shall be retained only by the
Clerk. Address information shall not be maintained in the court file or disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendant or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Philip M. Frazier for further pre-trial proceedings. Plaintiff’s motion for
leave to proceed as a pauper (Doc. 6) will be addressed by the district court in a separate order.
Further, this entire matter shall be REFERRED to a United States Magistrate for
disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis may have been granted. See 28 U.S.C. §

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1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to Plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: January 25, 2016
s/ STACI M. YANDLE
United States District Judge

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