Dent v. Burrell et al

Filing 71

ORDER ADOPTING 49 REPORT AND RECOMMENDATIONS: The Objection filed by Plaintiff Charles Dent (Doc. 62 ) is OVERRULED and the Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 7 ) is DENIED. Signed by Judge Nancy J. Rosenstengel on 8/21/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DENT,
Plaintiff,
vs.
THOMAS BURRELL, ALFONSO
DAVID, KAREN SMOOT, JEFFERY
DENNISON, HARRY ALLARD, DEDA
MILLS, STEPHEN ENGLER, and
SHERRY BENTON,
Defendants.

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Case No. 3:16-CV-1263-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 49), which recommends denying the
Motion for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff
Charles Dent (Doc. 7). For the reasons explained below, the Court adopts Magistrate
Judge Wilkerson’s Report and Recommendation and denies Dent’s motion for
preliminary injunctive relief.
On November 21, 2016, Dent, an inmate housed at Shawnee Correctional Center,
filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging, among other things, that he was
denied adequate dental care for an abscessed tooth and abscess-related complications
(Doc. 1). As relevant to his pending motion for preliminary injunctive relief, Dent claims
Defendant Thomas Burrell, a dentist, extracted an abscessed molar on August 15, 2016
(Id.). For several days after the extraction, Burrell experienced persistent aching and

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throbbing (Id.). On August 19, 2016, Burrell noted that Dent had an ongoing infection
around the extraction and prescribed Dent antibiotics and ibuprofen (Id.). On August 23,
2016, Dent examined the extraction site himself and claims he could still see swelling and
tooth fragments or part of the broken tooth still in the socket (Id.). He went to the
infirmary, where Burrell examined Dent and informed Dent he merely needed more
time to heal (Id.). On August 27, 2016, Burrell again examined Dent’s mouth, this time
taking x-rays (Id.). On September 9, 2016, Burrell examined Dent yet again and told him
that he still had an infection and that it would take time for the wound to heal. Burrell
prescribed Dent more antibiotics and ibuprofen. (Id.).
Shortly after filing his Complaint, Dent filed a motion for temporary restraining
order and preliminary injunction, asking the Court to order Defendants to provide
proper dental care and to refer Dent to an oral surgeon (Doc. 7). Magistrate Judge
Wilkerson held a hearing on Dent’s motion for temporary restraining order and
preliminary injunction on March 16, 2017. At the hearing, Dent testified he is still
experiencing swelling, pain, and redness related to the extraction of his abscessed tooth,
which he attributed to Burrell’s failure to prescribe antibiotics during the August 15,
2016 extraction. Dent claims he is not being provided any treatment and takes Excedrin
to address his pain. Dent also testified that Burrell showed him x-rays indicating the
tooth was fully extracted.
Burrell also testified at the hearing, stating that Dent had no signs of infection at
the time of the extraction. Burrell testified that he advised Dent it would take time to heal
and that the entire tooth was extracted. Burrell further stated that he saw Dent on

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September 10, 2016. At that time, the extraction site was less red and Dent was feeling
better. He last saw Dent on November 1, 2016, for a biannual exam. According to Burrell,
Dent had no complaints and has not requested to be seen by the dental staff since then.
On May 19, 2017, Magistrate Judge Wilkerson entered the Report and
Recommendation currently before the Court (Doc. 49). Magistrate Judge Wilkerson first
found that Dent did not demonstrate he will suffer imminent, irreparable harm absent
injunctive relief. Magistrate Judge Wilkerson noted that Dent had no signs of infection
during his last examination on November 1, 2016, he has not requested to be examined
by dental personnel since that exam, and he has managed his pain by taking Excedrin.
Magistrate Judge Wilkerson also found that Dent has not established a likelihood of
success on the merits of his Eighth Amendment claim against Defendant Burrell at this
time. Not only is it unclear whether Dent suffers from a serious medical condition based
on Burrell’s testimony, but the evidence also does not support a finding at this time that
Burrell disregarded a substantial risk to Dent’s health when he extracted Dent’s tooth
and performed a number of follow-up exams.
After seeking an extension of time, Dent filed a timely objection to the Report and
Recommendation on June 27, 2017 (Doc. 62). Dent’s objection focuses on the
“unreasonable prospect” of further treatment and evaluation by Defendant Burrell in
light of Dent’s experiences with him, including the fact that Dent has now sued
Defendant Burrell. Dent notes that in a non-prisoner setting, it would be “inexplicable
for a party to seek treatment or evaluation from another party who has been sued, and is
in a completely adversarial position with Plaintiff.” As a result, Dent argues, his request

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that he be evaluated by an outside oral surgeon is reasonable. Dent also contends that
Defendants will not suffer any irreparable harm if the request for injunctive relief is
granted; even if harm occurred, it would be outweighed by the harm suffered by Dent.
Defendants filed a response to Dent’s objection on July 31, 2017 (Doc. 66), in
which they argue that Dent has not made a clear showing he will suffer imminent,
irreparable harm absent a referral to an oral surgeon or that the present litigation
prevents Dent from receiving adequate medical services through the medical providers
currently available to Dent at Shawnee. Defendants contend that Dent is not entitled to
demand specific care, and he has routinely received treatment for oral hygiene diseases
during his time at Shawnee. Although Dent has not had any dental treatment or
consultation since November 2016, he did not complain of pain at that time, and he has
not requested to be seen at dental since that time. Simply put, there is no indication that
his condition requires oral surgery or that referral to an outside oral surgeon will lead to
any alternative treatment than what Dent has received at Shawnee. Furthermore, there is
no support for Dent’s allegation that Dr. Burrell cannot provide adequate medical
services in light of this lawsuit. Not only has Dent failed to cite to any legal precedent
that entitles him to outside care simply because he has filed a lawsuit, but if Dent’s
position were upheld, any prisoner who has alleged any grievance against any prison
staff would be entitled to outside care. Defendants also assert that this argument ignores
the standards medical providers adhere to in the treatment of all prisoners.
Where timely objections are filed, this Court must undertake a de novo review of
the Report and Recommendation. 28 U.S.C. 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);

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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). The Court may then accept, reject,
or modify the magistrate judge’s recommended decision. Harper, 824 F. Supp. at 788. In
making this determination, the Court must look at all of the evidence contained in the
record and give fresh consideration to those issues to which specific objections have
been made. Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure
§ 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).
The Court has carefully reviewed the evidence in the record, Magistrate Judge
Wilkerson’s Report and Recommendation, Dent’s objection, and Defendants’ response.
Following this review, the Court fully agrees with the findings, analysis, and conclusions
of Magistrate Judge Wilkerson. Dent has not met his initial burden of showing there will
be imminent, irreparable harm absent the injunction. See Planned Parenthood v.
Commissioner of Indiana State Dept. Health, 699 F.3d 962, 972 (7th Cir. 2012) (“To obtain a
preliminary injunction, the moving party must demonstrate a reasonable likelihood of
success on the merits, no adequate remedy at law, and irreparable harm absent the
injunction.”). As of November 1, 2016, there were no signs of infection, and Dent has not
requested to be seen by the dental staff at Shawnee since that time. Furthermore, Dent
testified at the hearing that Burrell showed him x-rays indicating the tooth was fully
extracted.
The Court also agrees with Magistrate Judge Wilkerson that Dent has not
demonstrated a reasonable likelihood of success on the merits on his Eighth Amendment
deliberate indifference claim against Defendant Burrell at this time. The evidence in the

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record indicates that Defendant Burrell extracted Dent’s tooth on August 15, 2016,
performed a number of follow-up exams, prescribed antibiotics and ibuprofen, and took
x-rays to confirm no tooth fragments remained in the socket. The evidence at this
juncture is insufficient to demonstrate that Defendant Burrell acted with deliberate
indifference to a serious medical condition. See Greeno v. Daley, 414 F.3d 645, 652-53 (7th
Cir. 2005).
Moreover, although Dent claims it would be “inexplicable” for a non-prisoner
plaintiff to seek treatment or evaluation from someone they are suing, he has pointed to
no authority indicating that the lack of choice in healthcare options, particularly in the
prison setting, can serve as the basis for granting a preliminary injunction. As noted by
Magistrate Judge Wilkerson, the Eighth Amendment does not require that prisoners
receive “unqualified access to health care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992); see
also Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“Under the Eighth Amendment, [the
plaintiff] is not entitled to demand specific care”).
For these reasons, Plaintiff Charles Dent’s Objection (Doc. 62) is OVERRULED.
Magistrate Judge Wilkerson’s Report and Recommendation (Doc. 49) is ADOPTED in
its entirety, and Plaintiff Charles Dent’s Motion for Temporary Restraining Order and
Preliminary Injunction (Doc. 7) is DENIED.
IT IS SO ORDERED.
DATED: August 21, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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