Tidwell v. Asselmeier et al

Filing 66

MEMORANDUM AND ORDER, The Court ADOPTS the Report & Recommendation (Doc. 50 ) in its entirety and GRANTS in part Plaintiff's Motion for Preliminary and/or Temporary Restraining Order (Doc. 9 ). Signed by Judge J. Phil Gilbert on 6/16/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLEO TIDWELL,
Plaintiff,
vs.
DR. ASSELMEIER, et al.,
Defendants.

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Case No. 16-cv-00041-JPG-SCW

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc.
50) of Magistrate Judge Stephen C. Williams recommending that this Court grant in part Plaintiff
Cleo Tidwell’s Motion for Temporary Restraining Order/Preliminary Injunction (Doc. 9). The
defendants filed objections to the R & R (Doc. 58) in a timely manner.
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The defendants have filed objections, so this Court will review de novo those portions of
the R & R to which objections have been filed. The Plaintiff filed this action alleging that the
defendants were deliberately indifference towards Plaintiff’s dental health in violation of the
Eight Amendment. Specifically, the plaintiff claims that the defendants refused to provide him
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with proper dental care or partial dentures after he refused to have his remaining teeth extracted.
(Doc. 8). Plaintiff’s injunctive request seeks a referral to an outside dentist for oral surgery in an
attempt to retain his remaining teeth.
The defendants argue that the retention of the plaintiff’s remaining teeth was never the
issue. They claim that the plaintiff’s complaint – and all the grievances he filed – was an attempt
to obtain a new partial denture. He was informed that the condition of his remaining teeth would
not support a partial denture due to periodontal disease and that he would have to have his
remaining teeth removed and full dentures.

Plaintiff refused to have his remaining teeth

extracted.
The Magistrate Judge conducted a hearing on May 13, 2016. At the hearing, it was
determined that plaintiff’s periodontal disease may be delayed by proper home care and
supplemental quarterly cleanings by a dental hygienist that would include root planing and
scaling1.

Also of assistance would be an anti-bacterial mouth wash that is commercially

available.
The United States Court of Appeals for the Seventh Circuit has described injunctions like
the one sought here, which would require an affirmative act by the defendant, as a mandatory
preliminary injunction. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997).
Mandatory injunctions are “cautiously viewed and sparingly issued,” since they require the court
to command a defendant to take a particular action. Id., citing Jordan v. Wolke, 593 F.2d 772,
774 (7th Cir. 1978). See also W.A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir.
1958).
1

“Root planing and scaling cleans between the gums and the teeth down to the roots.” Oral Care, WebMD,
www.webmd.com/oral-heath/root-planing and scaling.com/current as of 11/14/2014.
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Preliminary injunctive relief is designed Ato minimize the hardship to the parties pending
the ultimate resolution of the lawsuit.@ Platinum Home Mortgage Corp. v. Platinum Fin. Group
Inc., 149 F.3d 722, 726 (7th Cir. 1998). A party seeking a preliminary injunction must make a
threshold showing that (1) it has some likelihood of success on the merits, (2) no adequate
remedy at law exists, and (3) it will likely suffer irreparable harm if the injunction is not granted.
Ferrell v. United States Dep=t of Housing and Urban Dev., 186 F.3d 805, 811 (7th Cir. 1999).
If the moving party is able to establish these three factors, the Court must then balance
the harms to both parties using a Asliding scale@ analysis, also taking into consideration the effect
that granting or denying the injunction will have on the public. A[T]he greater the moving party=s
likelihood of prevailing on the merits, the less strongly it must show that the balance of harms
weighs in its favor.@ Ferrell, 186 F.3d at 811. AA preliminary injunction is an extraordinary
remedy that should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.@ Chicago Dist. Council of Carpenters Pension Fund v. K & I Constr., Inc., 270 F.3d
1060, 1064 (7th Cir. 2001) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam)); accord Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008).
The Magistrate Judge found that the plaintiff had not had any routine cleanings of his
teeth since he arrive in Menard in 2013. At the hearing, “Dr. Newbold testified that inmates at
Mendard must request cleaning of their teeth.” He further stated that, in his opinion, plaintiff
should have been aware of periodontal disease and should have requested the above noted
treatment. He also admitted that the dental department does not prioritize teeth cleaning based
on inmates’ oral health condition and that the plaintiff’s periodontal disease was not treated
because the plaintiff did not specifically request treatment of his periodontal disease. (Doc. 50,
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pg 3).
Based on a review of the record, the Court finds that the plaintiff has some likelihood of
success on the merits because as medical professionals, the defendants have an obligation to treat
a known serious dental condition.

Plaintiff requested – and filed grievances – for dental

treatment and the plaintiff cannot be required to know and specifically request a certain course of
treatment. The Court further agrees with the Magistrate Judge that there is no adequate remedy
at law and that plaintiff will likely suffer irreparable harm if the injunction is not granted,
because the loss of teeth cannot be replaced organically.
Plaintiff has established the three factors for injunctive relief so the Court must now
balance the harms to both parties using a Asliding scale@ analysis, also taking into consideration
the effect that granting or denying the injunction will have on the public. In this case, the prison
dental system already performs routine cleanings so the quarterly cleanings the plaintiff requires
can be provided without the addition of any special equipment or personnel. It would simply
require a standing appointment every three months with the hygienist that performs the
cleanings. Dr. Newbold testified at the hearing that the plaintiff could perform a home care
routine within his cell so the effort to implement that relief would simply be the time it took the
defendants to instruct the plaintiff on the proper means of dental care within his cell. Finally, the
anti-bacterial mouth wash could be dispensed on a medication line like any other medication. If,
as stated by the defendants, such anti-bacterial mouth wash is a security concern that cannot be
dispensed as a medication, then at a minimum, it would seem that a salt-water rinse or other
appropriate substitute could be provided.
Based on the above, the Court finds that the harm to the Plaintiff would be greater than
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the harm to defendant if plaintiff’s dental needs are not address. The Court also finds that
granting the injunction, in part, will have a positive effect as the public as an interest in ensuring
prison’s dental needs are addressed at the earliest stage where corrective action could result in
ensuring prisoners are able to retain their teeth.
Finally, as noted earlier, the Plaintiff’s injunctive relief requested referral to an outside
oral surgeon. That type of injunctive relief would require transportation on a quarterly basis
along with other logistical concerns of an inmate leaving the prison’s confines at least on a
quarterly basis. Although that manner of relief may be available if the Plaintiff is successful in
this case, the Court agrees with the Magistrate Judge that it is a greater relief than is necessary at
this point in the litigation.
The Court would also like to address Mr. Tidwell’s recently filed “Update” (Doc. 65) in
which he states his “dissatisfaction with this courts 5-16-16 injunction order.” The report and
recommendation of 5-16-16 was favorable to the plaintiff and the Court CAUTIONS the
plaintiff to ensure that he fully understands the procedures of this Court before making any
disrespectful filings. The Plaintiff is WARNED that the Court will NOT tolerate unprofessional
filings and any such filings will be stricken from the record.
Based on the foregoing, the Court ADOPTS the Report & Recommendation (Doc. 50) in
its entirety and GRANTS in part Plaintiff’s Motion for Preliminary and/or Temporary
Restraining Order (Doc. 9).
IT IS SO ORDERED.
DATED: 6/16/2016
s/J. Phil Gilbert
J. PHIL GILBERT
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DISTRICT JUDGE

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