Dent v. McBride et al

Filing 84

ORDER: The Motion for Reconsideration filed by Plaintiff Charles Dent (Doc. 68 ) is DENIED, the Motion to Supplement the Record on Appeal (Doc. 83 ) is DENIED, and the Motion to Appoint Counsel on Appeal (Doc. 70 ) is DENIED. The Clerk of Court is DIRECTED to transfer the Motion to Appoint Counsel (Doc. 70 ) to the Court of Appeals. Plaintiff's Motion for Leave to Appeal in forma pauperis (Doc. 81 ) is GRANTED. An Order assessing an initial partial filing fee will be entered separately. Signed by Judge Nancy J. Rosenstengel on 11/9/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DENT,
Plaintiff,
vs.
RANDAL MCBRIDE and
DENNIS LARSON,
Defendants.

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Case No. 3:15-CV-740-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on a Motion for Reconsideration filed by Plaintiff
Charles Dent (Doc. 68), as well as his Motion to Appoint Counsel on Appeal (Doc. 70),
Motion for Leave to Appeal in forma pauperis (Doc. 81), and Motion to Supplement the
Record on Appeal (Doc. 83). For the reasons set forth below, the Motion for
Reconsideration, Motion to Appoint Counsel on Appeal, and Motion to Supplement the
Record on Appeal are denied. The Motion for Leave to Appeal in forma pauperis is
granted.
BACKGROUND
Plaintiff Charles Dent, an inmate in the Illinois Department of Corrections,
initiated this lawsuit on July 8, 2015, alleging his constitutional rights were violated
when Dr. Randal McBride, a dentist, and Dr. Dennis Larson, the medical director at Big
Muddy Correctional Center, were deliberately indifferent to his serious dental issues,
including painful, abscessed teeth (Doc. 1). Specifically, Dent claimed Defendants
delayed the extraction of his teeth for an unreasonable amount of time.
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Defendants filed a motion for summary judgment on the merits of this case on
November 30, 2016 (Doc. 36). Dent filed a supplemental brief in opposition to summary
judgment on July 6, 2017, after completing the deposition of Dr. Jay Swanson, an oral
surgeon who treated Dent (Doc. 56). Defendants filed a supplemental reply on July 20,
2017 (Doc. 57). The undersigned District Judge granted summary judgment to
Defendants on September 22, 2017 (Doc. 66). On October 3, 2017, Dent asked the Court to
reconsider its ruling (Doc. 68).
DISCUSSION
I.

Motion to Reconsider
Although Dent did not file his motion to reconsider pursuant to any certain

Federal Rule of Civil Procedure, “the fact that it challenges the merits of the district
court’s decision means that it must fall under Rule 59(e) or Rule 60(b) . . . .” Mares v.
Busby, 34 F.3d 533, 535 (7th Cir. 1994). Whether a motion for reconsideration should be
analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on
the timing or label affixed to it. Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008).
Because Dent’s motion asserts a manifest error of fact by the Court in granting summary
judgment, and because it was filed within 28 days of the entry of judgment, the Court
reviews Dent’s motion under Rule 59(e). See id.
As an initial matter, the Court must address its jurisdiction to decide Dent’s Rule
59 motion. Normally, “a notice of appeal divests the district court of its control over
those aspects of the case involved in the appeal.” May v. Sheahan, 226 F.3d 876, 879 (7th
Cir. 2000) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)).
However, where a party prematurely files a notice of appeal before the Court has acted
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on a timely Rule 59 motion, as is the case here, the notice of appeal does not divest the
Court of jurisdiction to rule on the motion. See FED. R. APP. P. 4(a)(4)(B)(i). The notice of
appeal is, in effect, suspended until the Court disposes of the Rule 59 motion. See FED. R.
APP. P. 4(a)(4)(B)(i).
Having established its jurisdiction, the Court now addresses the merits of the
motion. Rule 59(e) permits a court to amend a judgment only if the movant
demonstrates a manifest error of law or fact or presents newly discovered evidence. See,
e.g., Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 814 (7th Cir. 2012). A “manifest error” is
not demonstrated by the disappointment of the losing party, but rather is the “wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). “This rule enables the court to correct its
own errors and thus avoid unnecessary appellate procedures.” Miller, 683 F.3d at 814
(internal citation and quotation marks omitted). The decision to grant or deny a Rule
59(e) motion is entrusted to the “sound judgment” of the district court. Id.
In granting summary judgment for Defendants, the Court held there was no
unreasonable delay in the extraction of Dent’s teeth. Specifically, the Court relied on
evidence that Dent first complained of pain around the area of tooth #30 on October 23,
2014. An examination by Dr. McBride showed mild to moderate periodontitis (gum
disease) but no abscess or swelling. Two months later, Dent returned and complained of
pain on the other side of his mouth near teeth #17 and #18. Dr. McBride noted
inflammation around the wisdom tooth and mild to moderate gum recession, but no
infection at that time. Nevertheless, Dr. McBride ordered penicillin, ibuprofen, and an x–

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ray and told Dent request additional care if the condition persisted. When Dent returned
on January 21, 2015, again complaining of pain and swelling around the area of teeth #17
and #18, Dr. McBride performed a percussion test (tapping on the tooth), which was
negative. Unsure of what was causing Dent’s pain, Dr. McBride referred Dent to Dr.
Swanson, the oral surgeon, for a more extensive evaluation than was possible at Big
Muddy.
Dr. Swanson saw Dent on February 12, 2015. Dr. Swanson diagnosed Dent with
tooth decay and periodontal disease and noted an “early abscess” in tooth #18 and
possibly #17, as well as severe pain to percussion. Dr. Swanson indicated removal of
teeth #17 and #18 was necessary. He also “suggested” removal of tooth #30.
Dr. Swanson testified he would have made a phone call if he thought Dent needed
emergency treatment or to get approval for tooth #30 if he thought it was urgent.
Upon his return to Big Muddy, Dr. Larson admitted Dent to the infirmary and
prescribed him ibuprofen and antibiotics, which significantly improved Dent’s
symptoms and allowed him to eat, sleep, and swallow without complications. Teeth #17
and #18 were surgically extracted on March 19, 2015, Dr. Swanson’s first available
appointment. The Court found that the length of time from February 12, 2015, when Dr.
Swanson diagnosed Dent with an “early abscess” to March 19, 2015, when teeth #17 and
#18 were extracted was not unreasonable given that Dent’s symptoms had improved
and that he was scheduled for Dr. Swanson’s first available appointment.1 The Court

Dr. McBride testified that Dr. Swanson is the only oral surgeon in the area who “deals with prison
cases.” (Doc. 37-1, p. 10).
1

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also found there was no evidence that Dr. Larson’s treatment was deficient or that he
provided care inconsistent with the directives of either Dr. Swanson or Dr. McBride.
The Court also relied on evidence that Dr. McBride examined Dent post-operation
on March 25, 2015. Dent again complained about sensitivity to tooth #30, which Dr.
McBride noted had some gum recession but no cracks or new decay. Dr. McBride
advised Dent they had to wait to extract tooth #30 until the surgical site from teeth #17
and #18 healed. On May 4, 2015, Dent reported greater pain in the area of tooth #30.
Dent agreed to have the extraction done in two weeks after he had completed the current
round of antibiotics. Tooth #30 was extracted on May 21, 2015. The Court held this
length of time was not unreasonable when there was no recommendation from Dr.
Swanson that #30 be extracted immediately and no evidence that Dr. McBride’s decision
to wait until the previous extraction site had healed was not based on medical judgment.
Dent now argues that the Court incorrectly relied on the testimony of Dr.
Swanson. Dent claims Dr. Swanson changed Dent’s diagnosis because he was upset he
was not paid for his deposition. Dent claims his discovery of the “altered” diagnosis
creates an issue of fact that precludes summary judgment. Specifically, Dent alleges that
on February 12, 2015, Dr. Swanson’s assistant informed Dent his x-rays showed he had
several abscessed teeth and said “is they blind” in reference to Dr. McBride. Dr. Swanson
then examined Dent and showed him the abscesses and infection on the x-ray. Dent
claims Dr. Swanson wrote Dent had a “severe” abscess in teeth #17 and #18 and “severe
perio + decay” in his medical records. Dent then refers to a motion to compel filed by
appointed counsel (Doc. 35), which stated that Dr. Swanson had demanded payment for

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his testimony in the amount of $1,700 per hour, with a prepayment of one hour’s time.
Because counsel was appointed to represent Dent pro bono, counsel did not agree to pay
Dr. Swanson, a fact witness, any money (Id.). Upon learning he would not be paid, Dr.
Swanson unilaterally cancelled the deposition and said he would not give testimony
unless he was paid his demanded deposition fee (Id.). Plaintiff’s counsel asked the Court
to order Dr. Swanson to appear for his deposition and to deny Dr. Swanson’s demand
for fees (Id.). The Court granted the motion to compel and noted that neither Rule 30 of
the Federal Rules of Civil Procedure nor 28 USC § 1821 provide for the type of fees Dr.
Swanson demanded (Doc. 53). Dent now claims Dr. Swanson altered his diagnosis
because he was upset he was not paid for his deposition, and that the Court relied on
this testimony in granting summary judgment for Defendants.
Dent’s argument regarding Dr. Swanson’s altered diagnosis fails because Dent
has misread Dr. Swanson’s notes on medical record. Dr. Swanson’s notes actually state:
“17 + 18 – P.A. Abscess – severe pain to percussion.” (Doc. 68, p. 9). It does not state that
Dent’s abscess was severe but rather that Dent had severe pain to percussion (tapping on
his teeth) (Id.). Further, while the record does state “severe perio + decay,” Dr. Swanson
never downplayed the severity of Dent’s periodontitis in his deposition by using the
word “mild.” Thus, the Court did not rely on any altered facts or testimony by Dr.
Swanson in coming to its conclusion.
Dent next argues, briefly, that Dr. McBride was untruthful when he stated that
Dent had only mild bone loss and moderate periodontal disease just to cover up his
deliberate indifference. Dent questions how Dr. McBride could have failed to diagnose

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an abscessed tooth when, a week later, Dr. Swanson found a severe abscess and severe
periodontal disease. Dent claims this is “not medically possible” and is a “fiction” that
the Court relied on. As previously discussed, however, the record does not indicate Dent
had a severe abscess, only an “early” abscess. Furthermore, Dent has not pointed the
Court to any existing or new evidence—other than his own say-so—indicating it is
impossible for a doctor to miss an abscess or to consider a case of periodontitis to be
“moderate,” while another doctor later finds the periodontitis to be “severe.” Because he
has not shown any manifest error of law or fact, Dent is not entitled to relief on this basis.
Finally, Dent states, without any supporting argument, that his original
complaint alleges he told Dr. Larson numerous times he was not receiving dental
treatment and had been suffering since December 15, 2014. Dent claims Dr. Larson only
prescribed three days’ worth of Tylenol 3 when he admitted Dent to the infirmary and,
when Dent’s abscess turned into a boil and burst, Dr. Larson had to be called at home to
prescribe Dent more pain medication. There was no discussion on summary judgment,
however, nor is there any evidence in the record indicating Dr. Larson was aware of
Dent’s dental issues prior to seeing him in the infirmary on February 13, 2015, or that Dr.
Larson failed to prescribe medication or treat him for an alleged burst abscess. “A Rule
59(e) motion cannot be used to present evidence that could and should have been
presented prior to the entry of final judgment.” Matter of Prince, 85 F.3d 314, 324 (7th Cir.
1996). Because these issues were not raised on summary judgment, Dent is not entitled to
relief under Rule 59(e).
One other point is worth noting here. Dent cites to Dobbey v. Mitchell-Lawshea, a

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case in which the Seventh Circuit held there was a genuine issue of material fact as to
whether the defendants were deliberately indifferent in failing to treat the plaintiff’s
abscessed tooth. Dobbey v. Mitchell-Lawshea, 806 F.3d 938 (7th Cir. 2015). In Dobbey, the
plaintiff complained of a loose tooth and severe pain to a medical technician who wrote
“abscess” on a form. Id. at 939. The prison dentist learned of plaintiff’s abscess five days
later, and scheduled him to be examined two days after that. Id. The appointment was
cancelled. Id. Still untreated “even by pain medication,” the plaintiff experienced
stomach pains, vomiting, and fever, and was taken to the infirmary. Id. The plaintiff
finally was examined 21 days after the technician initially wrote “abscess” on his
medical form, at which point the dentist prescribed penicillin. Id. at 939-40. The infected
tooth was extracted six days later, after the antibiotic brought the infection under
control. Id. at 940. In finding there was a genuine issue of material fact, the Court of
Appeals noted that, in granting summary judgment for the defendants, the district court
“failed to appreciate the gravity of a tooth abscess or attach sufficient weight to the slack
response of prison staff to Dobbey’s medical problem.” Id. Because no reason had been
given for the delay in examining the plaintiff, a jury could find that the defendant dentist
was deliberately indifferent. Id.
This case is distinguishable from Dobbey. Dent’s complaints of an infection were
never disregarded; even without any evidence of an abscess, Dr. McBride ordered Dent
penicillin and pain relievers. When Dr. McBride could not figure out the source of Dent’s
pain, he referred him to Dr. Swanson, who diagnosed Dent with an early abscess on
February 12, 2015. The following day, Dr. Larson prescribed Dent an antibiotic and pain

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medication, which significantly improved his condition. Dent remained on antibiotics,
and the teeth were surgically extracted on March 19, 2015, Dr. Swanson’s first available
appointment. Thus, there was no unexplainable delay or complete lack of treatment.
Thus, unlike Dobbey, is not a case where the jury could reasonably find Defendants were
deliberately indifferent.
In conclusion, Dent has not demonstrated any grounds for relief under Rule 59(e),
and the Court remains confident that it was correct in granting its summary judgment in
favor of Defendants. Accordingly, Dent’s Motion for Reconsideration (Doc. 68) is denied.
B.

Motion for Leave to Appeal in forma pauperis, Motion for Appointment of
Counsel on Appeal, Motion to Supplement the Record on Appeal
The same day Dent filed his motion to reconsider, October 3, 2017, he also filed a

notice of appeal (Doc. 69) and a motion for appointment of counsel on appeal (Doc. 70).
On November 1, 2017, Dent filed a motion for leave to appeal in forma pauperis (Doc. 81)
and a motion to supplement the record on appeal (Doc. 83).
Dent was permitted to proceed IFP in this Court on the underlying action
(Doc. 6), and therefore, he may continue on appeal IFP without further authorization so
long as his appeal is in good faith and his financial status has not changed. 28 U.S.C.
§ 1915(a)(1) & (3); FED. R. APP. P. 24(a)(3). While the Court remains convinced that
summary judgment was appropriate, the Court has no reason to doubt that Dent’s
appeal is taken in good faith. Furthermore, Dent submitted a statement from his prison
trust fund account indicating his financial status has not changed. Thus, Dent’s motion
to appeal in forma pauperis is granted.

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The Court denies as moot, however, Dent’s motion to supplement the record on
appeal. In his motion, Dent asks this Court to modify the record on appeal to include all
pre-trial motions, including Defendants’ summary judgment motion, all briefs in
support or opposition, and all exhibits, including the deposition of Dr. Jay Swanson.
Dent also requests that the Court include his motion to compel the deposition of Dr. Jay
Swanson and any other document relevant to the Court’s summary judgment order. A
review of the Record on Appeal confirms that these documents were indeed included in
the record when prepared by the Clerk of Court. Thus, Dent’s motion is moot.
Dent’s motion to appoint counsel on appeal also must be denied. This Court does
not have the authority to appoint counsel on appeal; only the Court of Appeals can make
such appointments. See 7th Cir. CJA Plan.
CONCLUSION
For the reasons stated above, the Motion for Reconsideration filed by Plaintiff
Charles Dent (Doc. 68) is DENIED, the Motion to Supplement the Record on Appeal
(Doc. 83) is DENIED, and the Motion to Appoint Counsel on Appeal (Doc. 70) is
DENIED. The Clerk of Court is DIRECTED to transfer the Motion to Appoint Counsel
(Doc. 70) to the Court of Appeals. Plaintiff’s Motion for Leave to Appeal in forma pauperis
(Doc. 81) is GRANTED. An Order assessing an initial partial filing fee will be entered
separately.
IT IS SO ORDERED.
DATED: November 9, 2017
s/ Nancy J. Rosenstengel_______
NANCY J. ROSENSTENGEL
United States District Judge
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