Tidwell v. Asselmeier et al

Filing 325

ORDER granting 312 Motion for Summary Judgment; 316 Motion for Summary Judgment. For the reasons stated in the attached Memorandum & Order, Defendants' motions for summary judgment (Docs. 312 , 316 ) are GRANTED. The Clerk of Court shall enter judgment in favor of Defendant Harry Henderson and Defendant Gail Walls and against Plaintiff Cleo Tidwell and shall close this case. Signed by Judge David W. Dugan on 2/5/2021. (kll)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLEO TIDWELL,
Plaintiff,
vs.
HARRY HENDERSON, and
GAIL WALLS,
Defendants.

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Case No. 16-cv-41-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Plaintiff Cleo Tidwell, who is incarcerated at Lawrence Correctional Center, filed
this action on January 14, 2016, alleging violations of his constitutional rights pursuant to
42 U.S.C. § 1983 while he was incarcerated at Menard Correctional Center (“Menard”).
Plaintiff alleges that Defendants Harry Henderson and Gail Walls violated his Eighth
Amendment rights because they were deliberately indifferent to his serious dental needs
by failing to treat Plaintiff’s dental condition in a timely manner or to refer Plaintiff to a
dentist outside of the prison. Now before the Court are Defendants’ motions for summary
judgment (Doc. 312; Doc. 316) to which Plaintiff did not respond. 1 For the reasons
delineated below, Defendants’ motions for summary judgment are GRANTED.

On August 10, 2017, Plaintiff was sanctioned by the Court with a monetary fine and was barred from
filing any civil pleadings in this District until the sanction is paid. See Tidwell v. Menard C.C., No. 16-cv-384SMY (S.D. Ill. Aug. 10, 2017, Doc. 43). Plaintiff appealed, but his appeal was dismissed for failure to pay the
filing fee. Before the dismissal, the Seventh Circuit denied a motion for leave to appeal in forma pauperis due
to Plaintiff’s failure to present a good faith issue that the Court erred in imposing the ban. See Tidwell v.
Clendenin, 7th Cir. Case. No. 17-3020. This filing ban remains in effect. Due to Plaintiff’s inability to respond,
rather than exercise discretion to deem the lack of response as an admission of the merits of the motions
under Local Rule 7.1(c), the Court will review the motions on the merits.
1

FACTUAL BACKGROUND
Plaintiff Cleo Tidwell was transferred to Lawrence Correctional Center in June
2016. Before being transferred and at all times relevant to his complaint, he was
incarcerated at Menard Correctional Center (“Menard”). Defendant Harry Henderson
was employed as a dentist at Menard from January 2011 to April 2015. Defendant Gail
Walls worked at Menard as the director of nursing from July 2012 to July 2014 and as the
healthcare unit administrator from July 2014 to October 2018. Plaintiff Tidwell alleges
that Defendants Henderson and Walls were deliberately indifferent to his serious medical
needs by delaying treatment of Tidwell’s dental condition and by failing to refer Tidwell
to an off-site dentist.
Tidwell’s dental records indicate a history of periodontal disease, dating back to
1991. (Doc. 313-1, p. 1). Defendant Henderson examined Tidwell on three occasions at
Menard. (Doc. 313-2, p. 1). On July 12, 2013, Henderson met with Tidwell to conduct a
biannual dental examination. (Doc. 313-2, p. 1). Henderson’s notes from that examination
stated that Tidwell “needed one or more teeth extracted” and that he had significant tooth
decay and poor oral hygiene. (Doc 313-2, p. 1). According to an affidavit Henderson
submitted in support of his motion, Henderson also ordered a panoral x-ray, which are
recommended every five years. (Doc. 313-2, p. 1).
On August 23, 2013, Henderson evaluated Tidwell’s partial dental prosthesis.
(Doc. 313-2, p. 2). According to Henderson’s affidavit and Tidwell’s medical records,
Henderson noted during that meeting that fitting an upper and lower partial denture for
Tidwell would be difficult for reasons that include: multiple missing teeth, tissue contact

pressing against the gum tissue above it, and limited ridge clearance between certain
teeth and the gum below. (Doc. 313-2, p. 2; Doc. 313-3, p. 2). Tidwell met with Henderson
again a week later, at which time Henderson told him that, for the best results, he needed
four teeth removed before being fitted for upper and lower partial dentures. (Doc. 313-2,
p. 2; Doc. 313-3, p. 4). Tidwell was unwilling to commit to the tooth extractions at that
time and left without the recommended treatment, indicating that he would write when
he was ready to commit to the treatment plan. (Doc. 313-2, p. 2; Doc. 313-3, p. 4).
After August 30, 2013, Tidwell never contacted Henderson again, nor was he
scheduled on Henderson’s dental call line. (Doc. 313-2, p. 2). Henderson did not examine
or treat Tidwell against after August 2013. (Doc. 313-2, p. 2). Henderson did not prescribe
a dental rinse during any of the three appointments because he determined, in his
judgment, it was not within the scope of treatment for the dental concerns he was
evaluating. (Doc. 313-2, p. 2). Tidwell alleges that he needed teeth cleaning, scaling, and
planing during his appointments with Henderson; however, Henderson did not provide
those procedures because they are performed by dental hygienists, who are responsible
for scheduling their regular dental hygiene appointments at Menard without input from
the dentists. (Doc. 313-2, p. 3).
In connection with this motion for summary judgment, the Court appointed an
expert, D. Douglas Miley, D.M.D., M.S.D., to review Tidwell’s dental records. (Doc. 155).
Dr. Miley was given a list of topics and questions to address, and he identified four viable
treatment options for Tidwell. (Doc. 313-1, p. 1-2). Three of these options included tooth
extractions, and the other option called for regular periodontal cleanings. (Doc. 313-1, p.

1-2). Dr. Miley noted that one possible treatment would include “selected extractions due
to either a poor prognosis or poor tooth position, and fabrication of [upper] and [lower]
partial dentures.” (Doc. 313-1, p. 1).
In a written declaration, Defendant Walls testified that her duties as healthcare
unit administrator included verifying adherence to Illinois Department of Corrections
policies and procedures regarding healthcare. (Doc. 317-1, p. 1). Although she is a
registered nurse, Walls’ position at Menard was administrative. (Doc. 317-1, p. 1-2). Walls
did not provide dental treatment or dental hygiene services, and she did not make
recommendations for off-site treatment. (Doc. 317-1, p. 2). Walls also lacked the authority
to supersede a dentist’s decision as to a plan of care. (Doc. 317-1, p. 2). Instead, Walls’
duties included responding to grievances and letters related to healthcare questions.
(Doc. 317-1, p. 1). She customarily responded in writing to grievances and letters
regarding offender healthcare while working at Menard. (Doc. 317-1, p. 1). Walls
responded to grievances and correspondence from Tidwell on six occasions, three of
which related to Tidwell’s dental health. (Doc. 317-1, p. 1-2).
On December 16, 2015, Tidwell wrote to Walls, stating that he had requested
authorization for off-site dental treatment from the site medical director, Defendant Trost.
(Doc. 317-1, p. 1-2). Walls conferred with the dental director, Dr. Newbold, who told her
that it was not necessary that Tidwell be sent out of Menard for dental care, and Walls
responded to Tidwell’s letter accordingly. (Doc. 317-1, p. 2). About three weeks later,
Tidwell sent another letter to Walls, expressing his dissatisfaction with his dental care
and with Dr. Trost. (Doc. 317-1, p. 2). Walls reviewed Tidwell’s dental records and

responded that the multiple dentists that had evaluated him “all agreed with the
treatment plan” and that no dentist had referred his case to Dr. Trost. (Doc. 317-1, p. 2).
Tidwell also sent an undated letter to Walls requesting (1) information regarding his spot
in the teeth cleaning line and (2) documents that Walls had not yet returned to him. (Doc.
317-1, p. 2). On January 19, 2016, Walls responded that Tidwell was number 663 in the
hygienists’ cleaning line, and she returned the documents to Tidwell. (Doc. 317-1, p. 2).
LEGAL STANDARDS
I.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment.

Summary judgment is appropriate if the movant shows that there is no genuine dispute
as to any material fact and that the movant is entitled to judgment as a matter of law. See
Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014)(citing FED. R. CIV. PROC.
56(a)). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of
material fact remains “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord
Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-682 (7th Cir. 2014).
In assessing a summary judgment motion, the district court views the facts in the
light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. See Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).
As the Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by
examining the evidence in the light reasonably most favorable to the non-moving party,
giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the

evidence in [his] favor.” Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).
II.

Eighth Amendment Deliberate Indifference

The Eighth Amendment prohibits cruel and unusual punishments, and the
deliberate indifference to the “serious medical needs of a prisoner constitutes the
unnecessary and wanton infliction of pain forbidden by the Constitution.” Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to
“reasonable measures to meet a substantial risk of serious harm”—not to demand specific
care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). A prisoner’s dissatisfaction with a
medical professional’s prescribed course of treatment does not give rise to a successful
deliberate indifference claim unless the treatment is so “blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition.”
Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)(citation omitted).
In order to prevail on a claim of deliberate indifference, a prisoner who brings an
Eighth Amendment challenge of constitutionally deficient medical care must satisfy a
two-part test. See Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)(citation omitted). The
first consideration is whether the prisoner has an “objectively serious medical condition.”
Arnett, 658 F.3d at 750. Accord Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). “A medical
condition is objectively serious if a physician has diagnosed it as requiring treatment, or
the need for treatment would be obvious to a layperson.” Hammond v. Rector, 123 F. Supp.
3d 1076, 1084 (S.D. Ill. 2015)(citing Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.2014)). It is not
necessary for such a medical condition to “be life-threatening to be serious; rather, it
could be a condition that would result in further significant injury or unnecessary and

wanton infliction of pain if not treated.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
Accord Farmer, 511 U.S. at 828 (violating the Eighth Amendment requires “deliberate
indifference to a substantial risk of serious harm”)(internal quotation marks omitted).
Prevailing on the subjective prong requires a prisoner to show that a prison official
has subjective knowledge of—and then disregards—an excessive risk to inmate health.
See Greeno, 414 F.3d at 653. The plaintiff need not show the individual “literally ignored”
his complaint, but that the individual was aware of the condition and either knowingly
or recklessly disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). “Something
more than negligence or even malpractice is required” to prove deliberate indifference.
Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). See also Hammond, 123 F. Supp. 3d at 1086
(stating that “isolated occurrences of deficient medical treatment are generally
insufficient to establish . . . deliberate indifference”). Deliberate indifference involves
“intentional or reckless conduct, not mere negligence.” Berry v. Peterman, 604 F.3d 435,
440 (7th Cir. 2010)(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
Assessing the subjective prong is more difficult in cases alleging inadequate care
as opposed to a lack of care. Without more, a “mistake in professional judgment cannot
be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th
Cir. 2016). The Seventh Circuit has explained:
By definition a treatment decision that’s based on professional judgment
cannot evince deliberate indifference because professional judgment
implies a choice of what the defendant believed to be the best course of
treatment. A doctor who claims to have exercised professional judgment is
effectively asserting that he lacked a sufficiently culpable mental state, and
if no reasonable jury could discredit that claim, the doctor is entitled to
summary judgment.

Id. (citing Zaya v. Sood, 836 F.3d 800, 805-806 (7th Cir. 2016)). This is in contrast to a case
“where evidence exists that the defendant [ ] knew better than to make the medical
decision[ ] that [he] did,” Id. (quoting Petties v. Carter, 836 F.3d 722, 731 (7th Cir.
2016))(alterations in original). A medical professional’s choice of an easier, less efficacious
treatment can rise to the level of violating the Eighth Amendment, however, where the
treatment is known to be ineffective but is chosen anyway. See Berry, 604 F.3d at 441.
ANALYSIS
Tooth decay can cause pain and is associated with a risk of infection, and it can
constitute an objectively serious medical condition. Berry, 604 F.3d at 440 (citing Board v.
Farnham, 394 F.3d 469, 480-81 & n.4, 482-83 (7th Cir. 2005); Harrison v. Barkley, 219 F.3d
132, 137 (2d Cir. 2000)). The defendants do not dispute the seriousness of Tidwell’s dental
problems. Therefore, the Court finds that a reasonable jury could conclude that Tidwell
had an objectively serious medical condition.
I. Deliberate Indifference
Defendant Henderson argues that he is entitled to summary judgment because he
was not deliberately indifferent to Tidwell’s serious medical needs. Henderson claims
that he exercised his professional judgment to propose a treatment plan that would
provide Tidwell with the best results and that Tidwell disagreed with this treatment plan.
Important for the purposes of this motion is the well-established rule that a Court’s
consideration of claims of deliberate indifference must give deference to a medical
professional’s judgment regarding 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 v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008)). A delay
in treatment can rise to the level of deliberate indifference if the plaintiff presents medical
evidence that the delay “exacerbated the inmate’s injury or unnecessarily prolonged his
pain.” Perez v. Fenoglio, 792 F.3d 768, 777-778 (7th Cir. 2015)(citing McGowan v. Hulick, 612
F.3d 636, 640 (7th Cir. 2010) and Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007));
Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013).
Henderson met with Tidwell on three occasions before Henderson retired from
Menard. During the first appointment in July of 2013, Henderson observed that Tidwell
had significant tooth decay and poor oral hygiene, and Henderson ordered a panoral xray for evaluation. In August of 2013, Henderson examined Tidwell’s partial dental
prosthesis and noted several conditions that would complicate the creation of upper and
lower partial dentures. One week later, Henderson followed up with Tidwell and
recommended the extraction of four teeth before creating upper and lower partial
dentures. Tidwell refused the extractions, and, thereafter, he did not contact Henderson,
schedule an appointment for Henderson’s call line, and was never examined or treated
by Henderson again.
There is no evidence to support Plaintiff’s claim that Henderson disregarded an
excessive risk to Plaintiff’s health by delaying treatment. The record demonstrates that
Henderson exercised his professional judgment to determine a course of treatment for
Tidwell that included extracting four teeth and constructing partial upper and lower
dentures. Tidwell refused to commit to these extractions and told Henderson that he

would write to him when he was ready, but he never contacted Henderson. In a
declaration submitted in support of Henderson’s motion, a court-appointed expert
largely agreed with Henderson’s professional judgment regarding Tidwell’s treatment
plan. There is nothing in the record that calls into question Henderson’s professional
judgment, and Plaintiff’s mere disagreement with the treatment plan does not establish
an Eighth Amendment violation. Cesal v. Moats, 851 F.3d 714, 721 (7th Cir. 2017); see also
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“Under the Eighth Amendment,
[Plaintiff] is not entitled to demand specific care.”). Further, there is no evidence that
Tidwell’s dental condition worsened because of the treatment he received from
Henderson or that Tidwell suffered any unnecessarily prolonged pain because of the
treatment. In short, Henderson’s treatment plan is entitled to deference because it was
not so unsuitable that “no minimally competent professional would have so responded
under those circumstances.” Roe, 631 F.3d at 857.
The record is devoid of evidence that Henderson disregarded an excessive risk to
Tidwell’s health by failing to refer Tidwell to an off-site dentist. In order to prevail on a
deliberate indifference claim against Henderson, the Plaintiff must show that Henderson
was personally involved in, or acquiesced in, unconstitutional treatment of Plaintiff.
Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010) (citing Palmer v. Marion County, 327
F.3d 588, 594 (7th Cir. 2003)). The record indicates that, after Henderson retired from
Menard in April of 2015, Tidwell sent correspondence to Defendant Walls and the dental
director requesting off-site dental treatment. At that time, the dental director determined
that off-site dental care was unnecessary. However, there is no evidence that Tidwell

submitted a request to Henderson for the purpose of seeking off-site dental care, nor is
there evidence that Tidwell requested off-site care during the period Henderson worked
at Menard. Further, there is nothing in the record that indicates that off-site dental care
was necessary to treat Tidwell’s condition. Accordingly, for all these reasons, there is
insufficient evidence to suggest that Henderson was personally involved in the alleged
failure to refer Tidwell to an off-site dentist or that Henderson displayed deliberate
indifference by failed to refer Tidwell for outside care.
Defendant Walls argues that she was not deliberately indifferent toward Tidwell
because she fulfilled her duties by investigating and responding to Tidwell’s complaints
and by consulting with dentists about Tidwell’s treatment plan. Defendant Walls did not
provide healthcare treatment to Tidwell. As the healthcare unit administrator, her duties
consisted of responding to grievances from offenders about their healthcare. Walls was
aware of Tidwell’s dissatisfaction with his dental care, and she responded in writing to
all three of Tidwell’s written complaints about his dental care. Significantly, there is
nothing contained in the record that suggests Walls had the authority either to override
a dentist’s judgment regarding a treatment plan or to request off-site treatment on her
own.
Further, when Walls received Tidwell’s request for off-site treatment, she
discussed the matter with Menard’s dental director, who decided that off-site treatment
was not necessary, and she relayed this information to Tidwell. The evidence suggests
that Walls took Tidwell’s “condition seriously, investigated the situation … and
reasonably relied on the doctors’ professional opinions,” and, therefore, Walls was not

deliberately indifferent toward Tidwell. Johnson v. Doughty, 433 F.3d 1001, 1015 (7th Cir.
2006) (citations omitted).
In addition to Defendants’ arguments on the merits of Tidwell’s claims,
Henderson argues that Plaintiff’s claims are barred by the applicable statute of
limitations. Because the Court has reached a decision in Henderson’s favor on the merits
of Tidwell’s claims, the Court declines to reach this argument.
II. Qualified Immunity
Qualified immunity shields “government officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). The doctrine “balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Id. It protects an official from suit “when she makes a decision that, even if
constitutionally

deficient,

reasonably

misapprehends

the

law

governing

the

circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
The qualified immunity test has two prongs: (1) whether the facts shown, taken in
the light most favorable to the party asserting the injury, demonstrate that the officer’s
conduct violated a constitutional right, and (2) whether the right at issue was clearly
established at the time of the alleged misconduct. See Pearson, 555 U.S. at 232. See also
Brosseau, 543 U.S. at 197; Wilson v. Layne, 526 U.S. 603, 609 (1999). To be “’clearly

established’ a right must be defined so clearly that every reasonable official would have
understood that what he was doing violated that right.” Dibble v. Quinn, 793 F.3d 803, 808
(7th Cir. 2015)(citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). There need not be a case
directly on point, but “existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The right must be
established “not as a broad general proposition.” Reichle, 566 U.S. at 664. Instead, it must
be “particularized” such that the “contours” of it are clear to a reasonable official. Id. That
is, “existing precedent must have placed the statutory or constitutional question beyond
debate.” Carroll v. Carmen, 135 S.Ct. 348, 350 (2014).
Defendants Henderson and Walls are entitled to qualified immunity. It was clearly
established at the time of Tidwell’s dental condition that prison officials cannot act with
deliberate indifference to an inmate’s serious medical or dental needs. However,
Henderson and Walls engaged in no conduct that violated Tidwell’s constitutional rights.
This is because, even drawing all reasonable inferences in favor of Tidwell, no reasonable
jury could conclude that Walls and Henderson were deliberately indifferent toward
Tidwell. Therefore, the Defendants’ conduct does not satisfy the first prong of the test set
forth above, and they are entitled to qualified immunity.

CONCLUSION
For the above-stated reasons the motions for summary judgment filed by
Defendants Harry Henderson (Doc. 312) and Gail Walls (Doc. 316) are GRANTED. The
Clerk of Court shall enter judgment in favor of Defendant Harry Henderson and

Defendant Gail Walls and against Plaintiff Cleo Tidwell and shall close this case.

SO ORDERED.
Dated: February 5, 2021

______________________________
DAVID W. DUGAN
United States District Judge