Dent v. Burrell et al

Filing 206

ORDER ADOPTING in part and REJECTING in part 201 Report and Recommendations. The Motion for Summary Judgment filed by the IDOC Defendants (Doc. 180 ) is GRANTED. The Motion for Leave filed by Plaintiff Charles Dent (Doc. 198 ) is DENIED as moot, and Dent's Motion for Summary Judgment (Doc. [193-1]) is DENIED. Finally, the Motion for Summary Judgment filed by the Wexford Defendants (Doc. 182 ) is GRANTED. Plaintiff Charles Dent shall recover nothing, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Chief Judge Nancy J. Rosenstengel on 10/15/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DENT,
Plaintiff,
Case No. 3:16-CV-1263-NJR-MAB

v.
THOMAS BURRELL, ALFONSO
DAVID, KAREN SMOOT, JEFFERY
DENNISON, HARRY ALLARD, DEDA
MILLIS, STEPHEN ENGLER, and
SHERRY BENTON,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is the Report and Recommendation of Magistrate Judge
Mark A. Beatty (Doc. 201), which recommends the undersigned grant the Motion for
Summary Judgment filed by Defendants Harry Allard, Sherry Benton, Jeffery Dennison,
Stephen Engler, Deda Millis, Karen Smoot (“IDOC Defendants”) (Doc. 180) and grant in
part and deny in part the Motion for Summary Judgment filed by Defendants Thomas
Burrell and Alfonso David (“Wexford Defendants”) (Doc. 182). Both Plaintiff Charles
Dent and the Wexford Defendants filed timely objections to the Report and
Recommendation (Doc. 202, 203). For the reasons set forth below, the Court adopts the
Report and Recommendation in part, respectfully rejects it in part, and grants summary
judgment to all Defendants.

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BACKGROUND 1
A. Dr. Alfonso David
Plaintiff Charles Dent is an inmate in the Illinois Department of Corrections. In
May 2016, Dent was transferred to Shawnee Correctional Center from Big Muddy
Correctional Center (Doc. 183-3 at p. 7). On May 10, 2016, a nurse at Big Muddy filled out
an Offender Health Status Transfer Summary in which it was noted that Dent had a
history of migraines (Doc. 183-5 at p. 114). Two days later, an intake nurse at Shawnee
completed an intake chart review, which noted no chronic medical conditions and no
medical referrals (Id. at p. 115). In the section for “Other Referrals/Interventions,” the
note stated “Buspar 20 mg PO @ MS thru 9/7/16.” It then listed Defendant Dr. Alfonso
David’s name and his signature, which Dr. David attested meant he had reviewed the
intake note and recommendation (Doc. 183-2 at p. 11).
The first time Dent’s history of migraines appears in his medical records after his
transfer to Shawnee was on July 16, 2016, when a nurse noted that Dent self-reported
having chronic migraines and an Excedrin prescription that had run out (Doc. 183-5 at
p. 118). The nurse prescribed acetaminophen 325 mg for Dent to use as needed for pain
(Id.).
On August 9, 2016, Dr. David reviewed Dent’s chart and recommended that Dent
continue to use over-the-counter medications and continue treatment protocols as
needed (Id. at p. 121). On August 19, 2016, Dent was seen by another physician, Dr. Coe

1

The Court recites only those facts relevant to the objections filed.

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(Id. at p. 121). The medical record from that visit includes a note that, “per HCUA,” Dent
suffered from chronic migraines and requested Excedrin (Id.). Dr. Coe educated Dent on
migraines, prescribed Excedrin Migraine, and referred Dent to see Dr. David for followup (Id.). He also suggested a few different medications for Dent’s chronic migraines (Id.).
On September 12, 2016, Dr. David examined Dent based on Dr. Coe’s referral (Id.
at p. 122). Dent subjectively reported experiencing chronic migraines on his right side one
to two times per week, the pain from which are relieved by Excedrin (Id.; Doc. 183-2 at
¶ 18). Based on Dent’s subjective complaints and Dr. David’s evaluation, Dr. David
determined that Dent experienced chronic migraine headaches and prescribed Excedrin
Migraine for two months with three refills (Id.).
Dr. David attested that he was not made aware of Dent’s requests for Excedrin
Migraine until he saw Dent for the first time in September 2016 (Doc. 183-2 at ¶ 17). Dent
testified, however, that he sent Dr. David “a couple letters and requests asking him to
renew” his Excedrin prescription for his migraines, but he never received a response
(Doc. 183-3 at p. 31). Dent further disputes Dr. David’s testimony that he was not aware
of Dent’s history of migraines when Dr. David attested that he reviewed Dent’s medical
records and completed a chart review on August 9, 2016.
B. Dr. Thomas Burrell
Dr. Thomas Burrell, a licensed dentist employed at Shawnee Correctional Center,
examined Dent for tooth pain in the area of tooth #31 on July 15, 2016 (Doc. 183-1 at ¶¶ 3,
11). Dent informed Dr. Burrell at that visit that he has a history of periodontal disease and
has had 15 teeth extracted (Doc. 183-3 at p. 20). During the examination, Dr. Burrell
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observed that tooth #31 was moving, which is an indication of periodontal disease
(Doc. 183-4 at p. 18). He also noticed that the gums around the tooth appeared to be
infected (Doc. 203-1 at ¶ 11). Dr. Burrell testified that severe tooth mobility means the
tooth needs to be extracted (Doc. 183-4 at p. 18). He further testified that there was no
need to do percussion testing—a test performed to determine whether a root canal is
feasible—because the tooth was moving (Id.).
Although there was an infection present, Dr. Burrell testified that Dent did not
have an abscess (Doc. 203-1 at ¶ 11; Doc. 183-4 at 32). Dent’s dental record from July 15,
2016, also does not mention an abscess (Doc. 183-5 at p. 255). Dent disputes this
testimony, however, testifying that Dr. Burrell diagnosed him with an abscess and told
him the tooth needed to be removed (Doc. 193 at p. 65; Doc. 183-3 at p. 11). Dr. Burrell
gave Dent a prescription for Amoxicillin to treat the infection and ibuprofen 400mg for
his pain (Doc. 203-1 at ¶ 11). Dr. Burrell also put Dent on the prison’s extraction list
(Doc. 183-4 at p. 19). Dr. Burrell attested that it is common practice to treat an infection
with an antibiotic prior to extracting a tooth, as it can be difficult to numb the area if an
infection is present (Doc. 203-1 at ¶ 12).
Dr. Burrell saw Dent at regular dental call lines between July 16 and August 5,
2016 (Id. at ¶ 14). His tooth was not extracted at these appointments, however, as
extractions are not scheduled during the dental call line (Id.).
Dr. Burrell examined Dent on August 5, 2016, and gave him pain medication,
though Dr. Burrell did not believe Dent was actually in pain anymore (Doc. 183-4 at
p. 19). There was no sign of infection at that time (Id. at p. 20). Dr. Burrell told Dent to get
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his teeth cleaned, then let him know about his discomfort level (Doc. 183-5 at p. 55). That
same day, Dent filed a grievance against Dr. Burrell for putting him on a waiting list to
have his tooth extracted after previously telling him that his tooth was abscessed
(Doc. 193 at p. 65).
Dent testified that on August 15, 2016, Dr. Burrell verbally informed Dent that he
would extract the tooth because he was upset about a grievance being filed against him.
(Id. at p. 15). Dr. Burrell told Dent: “Since [you’re] considered special, [I] will extract the
tooth today.” (Id.). Tooth #31 then was extracted under anesthesia (Doc. 203-1 at ¶ 15).
Dent testified that the extraction took 40 to 45 minutes due to his tooth breaking in
separate pieces (Doc. 183-3 at p. 16).
Dr. Burrell attested that he did not diagnose an abscess on tooth #31 prior to
extracting it (Id. at ¶ 29). Instead, he believed tooth #31 showed signs of an infection,
which was treated with antibiotics and pain medication (Id.). He further attested that,
although he is now aware that Dent filed several grievances related to his dental care, he
was not aware of Dent’s August 5, 2016 grievance when he extracted tooth #31 on August
15, 2016 (Id. at ¶ 30).
C. Present Litigation
Dent filed this lawsuit on November 21, 2016, alleging Defendants Dr. Burrell and
Dr. David, as well as Defendants Karen Smoot, Jeffery Dennison, Harry Allard, Deda
Millis, Stephen Engler, and Sherry Benton violated his Eighth Amendment rights by
exhibiting deliberate indifference with regard to his serious medical needs. He also
asserted a retaliation claim. After threshold review of his complaint pursuant to 28 U.S.C.
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§ 1915A, Dent was permitted to proceed on the following counts:
Count 1:

Burrell failed to promptly and properly treat Dent’s abscess
and abscess-related complications, in violation of the Eighth
Amendment.

Count 2:

Burrell made improper treatment decisions and wrote a false
disciplinary report against Dent because Dent filed
grievances against him concerning his treatment, in violation
of the First Amendment.

Count 3:

David, Smoot, Dennison, Allard, Millis, Engler, and Benton
violated the Eighth Amendment by not intervening in Dent’s
dental care.

Count 4:

David failed to properly treat Dent’s migraine-related
problems from May 2016 to August 2016, in violation of the
Eighth Amendment.

(Doc. 6).
On February 13, 2019, the IDOC Defendants filed a motion for summary judgment
on the merits of Dent’s claims against them (Doc. 180). On March 8, 2019, the Wexford
Defendants similarly filed a motion for summary judgment (Doc. 182). After the Court
granted Dent’s motion to have his recruited counsel withdrawn, Dent filed pro se
responses to both motions (Docs. 193, 194). Dent also filed his own motion for summary
judgment (Docs. 193, 193-1).
On September 12, 2019, Judge Beatty entered the Report and Recommendation
currently before the Court (Doc. 201). Judge Beatty recommends that the undersigned
deny Dent’s motion for summary judgment, grant summary judgment to the IDOC
Defendants, and grant summary judgment to Defendant Dr. David. With regard to
Defendant Dr. Burrell, Judge Beatty recommends granting summary judgment with

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regard to Dent’s retaliation claim and his deliberate indifference claim as it relates to
Dent’s post-extraction care, but denying summary judgment with regard to Dent’s claim
that Burrell failed to promptly and properly treat his abscess.
On September 18, 2019, Dent filed an objection to the Report and Recommendation
only with regard to Judge Beatty’s determination that Dr. David is entitled to summary
judgment on Count 4. Specifically, Dent objects to Judge Beatty’s conclusion that Dr.
David was not deliberately indifferent for failing to prescribe him Excedrin pain medicine
between approximately May and August of 2016 (Doc. 202). The Wexford Defendants
objected to Judge Beatty’s finding of fact that Dr. Burrell diagnosed Dent with an abscess
at tooth #31 and his conclusion of law that a jury could find that Dr. Burrell was
deliberately indifferent to that abscessed tooth (Doc. 203). Both Dent and the Wexford
Defendants timely filed responses to the objections (Docs. 204, 205).
LEGAL STANDARDS
When timely objections are filed, the Court must undertake 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). This requires the Court to look at all evidence
contained in the record, give fresh consideration to those issues to which specific
objections have made, and make a decision “based on an independent review of the
evidence and arguments without giving any presumptive weight to the magistrate
judge’s conclusion.” Harper, 824 F.Supp. at 788 (citing 12 CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part));
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Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). If only a “partial objection is
made, the district judge reviews those unobjected portions for clear error.” Johnson v.
Zema Systems Corp., 170 F.3d 734,739 (7th Cir. 1999). The Court may then “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).
Summary judgment is proper only if the moving party can demonstrate “there is
no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the burden of establishing that no material facts are in genuine dispute; any
doubt as to the existence of a genuine issue must be resolved against the moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha Cty., 391
F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law
where the non-moving party “has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S.
at 323. “[A] complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Id.
DISCUSSION
The Supreme Court has recognized that “deliberate indifference to serious medical
needs of prisoners” may constitute cruel and unusual punishment under the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such a claim,
a plaintiff must show first that his condition was “objectively, sufficiently serious” and
second that the “prison officials acted with a sufficiently culpable state of mind.” Greeno
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v. Daley, 414 F.3d 645, 652-653 (7th Cir. 2005) (citations and quotation marks omitted).
“Deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain.’” Estelle, 429 U.S. at 104 (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)). “The infliction of suffering on prisoners can be found to
violate the Eighth Amendment only if that infliction is either deliberate, or reckless in the
criminal law sense.” Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). Negligence,
gross negligence, or even “recklessness” as that term is used in tort cases, is not enough.
Id. at 653; Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1987). While deliberate
indifference is not medical malpractice, a “delay in treating non-life-threatening but
painful conditions may constitute deliberate indifference if the delay exacerbated the
injury or unnecessarily prolonged an inmate’s pain.” Arnett v. Webster, 658 F.3d 742, 758
(7th Cir. 2011) (citing McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)).
To establish deliberate indifference, a plaintiff must demonstrate that the officials
were “aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists” and that the officials actually drew that inference. Greeno, 414 F.3d
at 653. “Even if a defendant recognizes the substantial risk, he is free from liability if he
‘responded reasonably to the risk, even if the harm ultimately was not averted.’” Gayton
v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (quoting Farmer, 511 U.S. at 843).
Defendants do not dispute that Dent suffered from an objectively serious medical
condition; accordingly, the Court presumes for the purpose of summary judgment that
Dent’s conditions were sufficiently serious to meet the deliberate indifference standard.

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A. Dr. David – Deliberate Indifference to Dent’s Migraines from May 2016 to
August 2016
Dent has objected to Judge Beatty’s conclusion that Dr. David is entitled to
summary judgment, arguing there are issues of material fact as to whether Dr. David was
deliberately indifferent to his migraine headaches from May 12, 2016 to August 2016.
Specifically, Dent claims there are issues of fact as to whether Dr. David was aware of his
10-year history of being prescribed Excedrin for his migraine headaches (Doc. 202). Dent
contends that Dr. David had knowledge of his migraines on May 12, 2016, when the
nurses noted in his medical records that he had been prescribed Excedrin prior to his
arrival at Shawnee and when the intake nurse made a referral to Dr. David to renew his
prescription. He also claims he sent a couple of letters to Dr. David. At the latest, he
argues, Dr. David became aware of Dent’s prescription on August 9, 2016, when he
reviewed Dent’s medical chart and recommended that Dent continue over-the-counter
medication.
As Defendants point out, however, neither the transfer summary prepared at Big
Muddy on May 10, 2016, nor the intake document signed by Dr. David on May 12, 2016,
mentions Excedrin. And Dr. David attested that his signature on the intake form meant
only that he had reviewed the intake form. The first reference to Excedrin in Dent’s
medical records appears on July 16, 2016, when a nurse noted that Dent self-reported
having chronic migraines and an Excedrin prescription that had run out. The nurse then
prescribed acetaminophen for Dent to use as needed for pain. The first time that Dr.
David reviewed Dent’s chart was on August 9, 2016, when he recommended that Dent

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continue using over-the-counter medications.
Even construing the evidence in a light most favorable to Dent, the Court finds
that Dr. David is entitled to summary judgment on Dent’s deliberate indifference claim.
Dent has presented no evidence demonstrating that Dr. David actually knew about
Dent’s Excedrin prescription prior to September 12, 2016, or that he received Dent’s letters
and deliberately disregarded them. Although Dr. David did a chart review on August 9,
2016, he testified that he was unaware of Dent’s requests for Excedrin Migraine until he
saw Dent for the first time in September 2016. Moreover, even if Dr. David was aware of
Dent’s prior Excedrin prescription before September 2016, it was not unreasonable for
Dr. David to wait to prescribe Excedrin until after first verifying Dent’s condition by
examining him in person. See Williams v. Guzman, 346 F. App’x 102, 105 (7th Cir. 2009).
Accordingly, the Court finds that Dr. David is entitled to summary judgment.
B. Dr. Burrell – Deliberate Indifference to Dent’s Pre-Extraction Serious Dental
Needs
In his Report and Recommendation, Judge Beatty found that while the decision of
whether to order an x-ray or perform additional diagnostic techniques are within a
doctor’s medical judgment, doctors cannot ignore serious medical conditions by ordering
diagnostic techniques that are inadequate. In this case, Dr. Burrell chose not to order an
x-ray of tooth #31, and there is a factual dispute as to whether Dr. Burrell performed a
percussion test on Dent’s tooth. It then took another month for Dent’s abscessed tooth to
be extracted. Based on these facts, Judge Beatty concluded that a jury could find Dr.
Burrell’s actions constituted deliberate indifference.

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The Wexford Defendants object to these findings (Doc. 203). First, Defendants
object to the finding of fact that Dr. Burrell ever diagnosed an abscessed tooth, arguing
that there is no evidence Dent ever had an abscess. Defendants note that Dent is not
qualified to self-diagnose an abscess, regardless of his dental history. Instead, the
evidence shows that Dr. Burrell diagnosed a “simple infection,” prescribed antibiotics to
treat it, and extracted it once the infection had cleared.
True, Dent is not an expert and cannot diagnose his own abscess. But Dent testified
that Dr. Burrell informed him he had an abscessed tooth that needed to be removed. The
Court must credit that testimony. See, e.g., McKinney v. Office of Sheriff of Whitley Cty.,
866 F.3d 803, 814 (7th Cir. 2017) (noting that the Seventh Circuit has held, time and again,
that self-serving testimony and affidavits are competent evidence at summary judgment
that must be considered by the Court).
Assuming, then, that Dent did have an abscess under tooth #31, the question
becomes whether a one-month delay in extracting the tooth could constitute deliberate
indifference. Defendants argue that there is no evidence Dr. Burrell’s pre-extraction
treatment decisions were not based on his professional judgment or that no minimally
competent professional would have provided the same treatment as Dr. Burrell. They
also assert that there is no evidence an x-ray or percussion test would have led to different
treatment or that an earlier extraction was medically necessary. They also note that Dr.
Burrell testified an extraction was not possible while there was an active infection. Once
Dr. Burrell saw that the infection had cleared, he placed Dent on the extraction list. Under
these circumstances, Dent cannot prove that Dr. Burrell violated the Eighth Amendment.
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The Court agrees. Assuming that Dr. Burrell told Dent he had an abscess on July
15, 2016, the evidence then shows that Dr. Burrell immediately prescribed antibiotics and
a pain reliever and put Dent on the prison’s extraction list. Dr. Burrell examined Dent
again on August 5, 2016, and found that the infection had cleared. Nevertheless, he gave
Dent an additional prescription for a pain reliever. Dr. Burrell then extracted tooth #31
under anesthesia ten days later on August 15, 2016. There is no evidence that Dr. Burrell
deliberately or recklessly inflicted pain on Dent or unnecessarily prolonged his pain. See
Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940 (7th Cir. 2015) (“A dentist demonstrates
deliberate indifference by failing to treat the patient promptly, thus prolonging the
patient’s pain, while knowing that the patient may well be in serious pain that is
treatable.”). And there is no evidence that any alternative treatment or testing was
necessary or would have been effective under the circumstances. Instead, the evidence
shows that Dr. Burrell promptly prescribed an antibiotic, ensured Dent had an adequate
supply of pain relievers, and extracted his tooth once the infection had cleared. These
actions are a reasonable response to Dent’s dental issues; accordingly, no jury would find
that Dr. Burrell was deliberately indifferent.
For these reasons, the Court respectfully rejects this portion of Judge Beatty’s
Report and Recommendation and grants summary judgment to Dr. Burrell on Dent’s
claim that he was deliberately indifferent to Dent’s pre-extraction dental needs.
C. Remaining Claims
No objections having been filed to the remainder of Judge Beatty’s conclusions,
the Court reviews them only for clear error. Finding none, the Court adopts those
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portions of the Report and Recommendation.
CONCLUSION
For the reasons set forth above, the Court ADOPTS in part and REJECTS in part
the Report and Recommendation of Magistrate Judge Mark A. Beatty (Doc. 201).
The Motion for Summary Judgment filed by the IDOC Defendants (Doc. 180) is
GRANTED. The Motion for Leave filed by Plaintiff Charles Dent (Doc. 198) is DENIED
as moot, and Dent’s Motion for Summary Judgment (Doc. 193-1) is DENIED. Finally, the
Motion for Summary Judgment filed by the Wexford Defendants (Doc. 182) is
GRANTED.
Plaintiff Charles Dent shall recover nothing, and the Clerk of Court is DIRECTED
to enter judgment accordingly.
IT IS SO ORDERED.
DATED: October 15, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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