Knox v. Mall et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 6/5/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TED KNOX, # N-92676,

)
)
Plaintiff,
)
)
vs.
)
)
NURSE MALL,
)
NURSE LAING,
)
NURSE MARSHALL,
)
NURSE CHATTEN,
)
NURSE TRIPP,
)
NURSE WILLIAMS,
)
NURSE GREGSON,
)
NURSE MEGEE,
)
DR. OSEMEYER,
)
NURSE RON,
)
DR. OSWALD,
)
NURSE SUZY,
)
NURSE MARTHA,
)
NURSE BRENDA,
)
NURSE KEISHA,
)
NURSE SHELLBY,
)
NURSE JOHN DOE #3,
)
LT. LEE,
)
McWILLIAMS,
)
WARDEN LASHBROOKS,
)
and WEXFORD HEALTH SOURCES, INC., )
)
Defendants.
)

Case No. 17-cv-574-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter was severed on May 31, 2017, from Knox v. Butler, et al., Case No. 17-cv494-SMY, pursuant to Federal Rules of Civil Procedure 20(b) and 21 (Doc. 1). Plaintiff is an
inmate at Menard Correctional Center (“Menard”), where he is serving a life sentence. His pro
se action is brought pursuant to 42 U.S.C. § 1983. The dental deliberate indifference claim

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severed into this case was designated as Count 5 in the original action, and is described as
follows:
Eighth Amendment claim for deliberate indifference to serious dental needs,
against Mall, Laing, Marshall, Chatten, Tripp, Williams, Gregson, Megee,
Osemeyer, Ron, Oswald, Suzy, Martha, Brenda, Keisha, Shellby, Nurse John Doe
#3, Lee, McWilliams, Lashbrooks, and Wexford Health Sources, Inc., for denying
and delaying care for Knox’s abscessed and infected tooth, in April and May
2017.
(Doc. 1, p. 6). The portion of the First Amended Complaint (Doc. 2) setting forth the facts
relevant to this claim is now before the Court for a preliminary review pursuant to 28 U.S.C.
§ 1915A. Along with the First Amended Complaint, Plaintiff filed a motion for preliminary
injunction (Doc. 3), which seeks an order requiring Defendants to provide care for Plaintiff’s
mouth infection.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility.” Id. at 557. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
Count 5 of the First Amended Complaint (Doc. 2)
This claim arose on April 23, 2017. (Doc. 2, pp. 19-39). Plaintiff began having problems
with one of his front teeth, and submitted a request for urgent dental care. Plaintiff takes insulin
shots and oral medication (Metformin) for diabetes twice each day, and takes blood pressure
medication daily. (Doc. 2, p. 19). Over the next several days, Plaintiff’s tooth became very
painful when he tried to eat, talk, or brush his teeth. The pain caused him to lose sleep, and
interfered with his daily activities. His breath became very bad due to his inability to brush his
teeth normally. Plaintiff’s mouth became infected and he was spitting out blood and pus daily.
(Doc. 2, p. 20). The tooth became loose and was dangling in his mouth. On April 30, 2017,
Plaintiff woke up around 2:00 a.m. to find blood all over his pillow. He submitted another
medical request for urgent dental care. Id.
Over the ensuing weeks, Plaintiff submitted additional medical requests as his condition

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deteriorated. His mouth continued to leak blood and pus constantly. His pain got worse every
time he tried to eat, talk, or brush his other teeth. Plaintiff showed his dangling tooth and
described his symptoms to numerous nurses who came to his cell, and he asked them for pain
medication.
These nurses, each of whom refused to help Plaintiff or give him anything for his pain,
include Shellby (on April 30 and May 10, 13, and 15, 2017), Laing (on May 4, 8, 9, 10, 11, 15,
and 16, 2017), Tripp (on May 5, 2017), Martha (on May 5, 6, and 12, 2017), Brenda (on May 6
and 14, 2017), Mall (on May 6 and 17, 2017), Chatten (on May 7 and 9, 2017), Marshall (on
May 7 and 14, 2017), Megee (on May 7, 10, and 14, 2017), Keisha (on May 8, 11, 16, and 17,
2017), Suzy (on May 8, 2017), Ron (on May 9, 2017), John Doe #3 (on May 12, 2017), Gregson
(on May 12, 2017), and Williams (on May 17, 2017). (Doc. 2, pp. 20-29).
Nurse Ron told Plaintiff that Wexford and the State were on a budget, and offered to
bring pliers to yank out the tooth. (Doc. 2, p. 24). On May 8, 2017, Plaintiff asked Lt. Lee for
help to get medical/dental treatment, but Lee refused to take any action. (Doc. 2, p. 23). On
May 9, 2017, Nurse Chatten told Plaintiff that “nothing would happen until lock-down was
over.” (Doc. 2, p. 23).
On or about May 10, 2017, Plaintiff wrote an emergency grievance to Warden
Lashbrooks over the denial of dental care, but he never received a response. (Doc. 2, pp. 25, 31).
On May 13, 2017, after Plaintiff requested a crisis team, he was taken to see McWilliams
(mental health staff). Plaintiff told McWilliams about his pain and dangling tooth, for which he
had been seeking care since April 23. McWilliams promised he would make a referral to the
dentist, but failed to do so. (Doc. 2, p. 27).
On May 14, 2017, the prison lockdown was ended and some inmates began receiving

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dental call passes for teeth cleaning. However, Plaintiff was not called to the dentist. Id.
On May 15, 2017, Laing told Plaintiff she had heard about the grievance Plaintiff filed on
her, and knew about his lawsuit against Butler, but she didn’t care who Plaintiff cried to, because
“she is covered.” (Doc. 2, p. 28). Later that day and the following day, Laing refused again to
give Plaintiff any pain medication.
On May 18, 2017, the pain from Plaintiff’s abscess increased. Shortly thereafter, the
tooth completely broke off and he started bleeding profusely. (Doc. 2, p. 29). Plaintiff was
rushed to the Health Care Unit, where a dental assistant applied gauze to stop the bleeding.
Osemeyer (dentist) told Plaintiff that he would never be placed on an emergency call line for
dental care and would remain at the back of the line, as long as Plaintiff kept those teeth in his
mouth. Id. Plaintiff asked for a partial to replace the missing tooth, and an MRI to determine the
severity of the infection. Osemeyer responded that he wasn’t about to waste Wexford’s money,
and said the only treatment Plaintiff would get was to have all his teeth extracted. Plaintiff did
receive antibiotics to treat the abscess, and ibuprofen for the pain. (Doc. 2, pp. 29-30).
On May 19, 2017, Shellby told Plaintiff that he “would regret writing a grievance on
her.” (Doc. 2, p. 30).
Plaintiff’s pending motion for preliminary injunction (Doc. 3), seeks testing and/or
treatment for his ongoing mouth infection and abscess. He also seeks compensatory and punitive
damages for the violation of his constitutional rights. (Doc. 2, p. 32).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on Plaintiff’s allegations under Count 5 in the First Amended Complaint, the Court
finds it convenient to further divide the claims in this pro se action into the following counts.
The parties and the Court will use these designations in all future pleadings and orders, unless

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otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion as to their merit. Any other claim that is mentioned in the Complaint but
not addressed in this Order should be considered dismissed without prejudice.
Count 1: Eighth Amendment claim for deliberate indifference to serious dental
needs, against Mall, Laing, Marshall, Chatten, Tripp, Williams, Gregson, Megee,
Osemeyer, Ron, Oswald, Suzy, Martha, Brenda, Keisha, Shellby, and Nurse John
Doe #3, for denying and delaying care for Plaintiff’s abscessed and infected tooth,
in April and May 2017;
Count 2: Eighth Amendment claim for deliberate indifference to serious dental
needs, against Wexford Health Sources, Inc., for denying and delaying care for
Plaintiff’s abscessed and infected tooth, in April and May 2017;
Count 3: Eighth Amendment claim for deliberate indifference to serious dental
needs against Lashbrooks, Lee, and McWilliams, for denying and delaying care
for Plaintiff’s abscessed and infected tooth, in April and May 2017;
Count 4: First Amendment retaliation claim against Laing, Keisha, and Shellby,
for refusing to provide Plaintiff with any pain medication or other treatment after
Plaintiff filed a grievance against them.
Counts 1 and 3 shall proceed against each Defendant named therein. Count 2 shall be
dismissed for failure to state a claim upon which relief may be granted. Count 4 shall proceed
against 2 of the Defendants.
In addition, Plaintiff’s allegation that he is still suffering from the mouth infection and
continues to need medical attention, indicates that his motion for preliminary injunction should
receive prompt consideration.
Count 1 – Deliberate Indifference – Nurses and Dentists
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that he (1) suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition.

An

objectively serious condition includes an ailment that significantly affects an individual’s daily

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activities or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997). The Seventh Circuit has recognized that dental care is “one of the most
important medical needs of inmates.” See Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001)
(inmate who was denied his dentures and could not chew his food, and suffered bleeding,
headaches, and disfigurement, stated a serious medical need).
“Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and either acts or fails to act in disregard of that risk.
Delaying treatment may constitute deliberate indifference if such delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(internal citations and quotations omitted). See also Farmer v. Brennan, 511 U.S. 825, 842
(1994); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015).

However, the Eighth

Amendment does not give prisoners entitlement to “demand specific care” or “the best care
possible,” but only requires “reasonable measures to meet a substantial risk of serious harm.”
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Further, a defendant’s inadvertent error,
negligence or even ordinary malpractice is insufficient to rise to the level of an Eighth
Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.
2008).
Here, Plaintiff describes a painful, damaged tooth that became badly infected and
interfered with his ability to eat, sleep, and maintain basic oral hygiene. The First Amended
Complaint thus satisfies the objective component of an Eighth Amendment claim.

The

remaining question is whether the prison medical and dental providers (as well as the nonmedical Defendants) acted or failed to act with deliberate indifference to a known risk of serious
harm.

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Plaintiff describes daily encounters with a multitude of nurses over a period of
approximately 3 weeks. In each case, Plaintiff described and/or showed the Defendant Nurse his
dangling tooth and the blood and pus being discharged from the infected area. He told each
nurse that he was suffering significant pain, and asked for pain medication. However, not a
single one of the nurses gave Plaintiff any medication to relieve his pain, and many remarked
that they were not responsible for dental care. Further, the nurses also failed to alert the dental
staff of Plaintiff’s need for assistance. Based on these allegations, Plaintiff may proceed with his
deliberate indifference claims in Count 1 against the following nurses: Mall, Laing, Marshall,
Chatten, Tripp, Williams, Gregson, Megee, Ron, Suzy, Martha, Brenda, Keisha, Shellby, and
Nurse John Doe #3. Of course, Plaintiff must identify Nurse John Doe #3 by name before this
individual can be served with notice of the action.
Turning to the dental providers, Dr. Osemeyer is the dentist who saw Plaintiff after his
tooth broke off. Plaintiff states that Dr. Oswald is the dental medical director. (Doc. 2, p. 3).
According to Plaintiff, he submitted a number of written requests for urgent medical care over a
period of 3 weeks, yet was never called in for evaluation or treatment by a dental professional
until his tooth broke off. These facts suggest deliberate indifference on the part of the prison
health official(s) who failed to take action on Plaintiff’s urgent and repeated requests for care,
thus delaying necessary medical attention. It is not clear where Osemeyer and/or Oswald fit in to
the chain of officials who were responsible for scheduling dental care. The First Amended
Complaint suggests that Osemeyer and/or Oswald may have received Plaintiff’s dental requests,
yet failed to take steps to provide care for his serious condition. To be sure, Plaintiff was finally
given antibiotics and pain medication (presumably at Osemeyer’s direction) following his
emergency visit when his tooth broke off. However, if the facts show that Osemeyer and/or

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Oswald bore responsibility for the delay in providing Plaintiff with this basic treatment, a
deliberate indifference claim may lie against them.
Osemeyer’s comment that the only dental treatment Plaintiff would receive would be the
extraction of all his teeth may support an Eighth Amendment claim, depending on what
treatment was necessary for Plaintiff’s broken tooth. Notably, Osemeyer’s refusal to grant
Plaintiff’s requests for an MRI and a partial denture do not necessarily support a deliberate
indifference claim. An inmate does not have the right under the Eighth Amendment to dictate
his own treatment or medical tests. See Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Further factual development will be necessary before the significance of these treatment
decisions can be evaluated.
Based on Plaintiff’s allegations, at this early stage of the case, Count 1 may proceed
against Osemeyer and Oswald, as well as the nurses, on his claims that necessary dental care was
denied and delayed.
Dismissal of Count 2 – Deliberate Indifference – Wexford Health Sources, Inc.
Defendant Wexford Health Sources, Inc., (“Wexford”) is a corporation that employs the
Defendant Nurses, as well as Osemeyer and Oswald, and provides medical and dental care at the
prison. However, it cannot be held liable solely on that basis. A corporation can be held liable
for deliberate indifference only if it had a policy or practice that caused the alleged violation of a
constitutional right. Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir.
2004). See also Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002) (private
corporation is treated as though it were a municipal entity in a § 1983 action).
While Plaintiff lists Wexford as a Defendant, he does not point to any alleged policy or
practice on the part of Wexford that caused the individual medical/dental providers to deny and

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delay treatment for several weeks. The comments of two individuals indicated that Wexford has
limited funds to spend on inmate dental care, however, this does not appear to be the driving
force behind the long delay. Nurse Ron remarked that Wexford and the State were “on a budget”
when he offered to go get some pliers and yank out Plaintiff’s tooth himself. (Doc. 2, p. 24).
This comment was in the context of Ron’s judgment that Plaintiff’s problem was not an
emergency, and indicates Ron’s insensitivity to Plaintiff’s plight, rather than suggesting a policy
reason for his failure to assist Plaintiff. Moreover, all of the other nurses similarly failed to take
action to refer Plaintiff for dental care, without invoking a Wexford policy or practice as a reason
for their inaction. To the contrary, the reasons given by nurses for refusing to help Plaintiff
included statements that the nurse was not responsible for dental care; dental visits were on hold
during the lockdown; Plaintiff’s problem was not urgent or an emergency; Plaintiff needed to
just put up with the pain until he could see a dentist; the dentist had not ordered any pain
medication for him; and annoyance with Plaintiff’s repeated complaints. Taken together, these
allegations suggest deliberate indifference on the part of the individual nurses, but do not
indicate that any of them failed to refer Plaintiff for dental care due to a Wexford policy or
practice.
The only other mention of Wexford in Plaintiff’s statement of claim is Dentist
Osemeyer’s remark that he “wasn’t about to waste Wexford’s money on Plaintiff” to provide
him with a dental partial or an MRI. (Doc. 2, p. 29). This does suggest that a cost-saving policy
could be the reason for denial of those two items. However, at this stage, these remarks do not
support a deliberate indifference claim against Wexford. First, as discussed under Count 1, the
denial of these specific treatments does not support a deliberate indifference claim, because an
inmate cannot dictate his own treatment, and there is no factual support for the proposition that

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either a partial or an MRI was necessary in order to treat Plaintiff’s condition. Secondly, the
substance of Plaintiff’s deliberate indifference claim is the fact that he was denied all treatment,
and got no referral for dental care, for 3 weeks while he suffered with serious symptoms.
Whether or not Wexford would approve a partial or an MRI has nothing to do with that lengthy
delay which is the subject of Count 1.
To summarize, Plaintiff’s factual allegations regarding the delay and denial of dental care
and pain medication between April 23 and May 18, 2017, do not support the proposition that a
Wexford policy or practice caused the Defendants in Count 1 to violate Plaintiff’s constitutional
rights. Accordingly, the deliberate indifference claim against Wexford Health Sources, Inc., in
Count 2 shall be dismissed at this time without prejudice, for failure to state a claim upon which
relief may be granted.
Count 3 – Deliberate Indifference – Non-Medical Defendants
The same factors as outlined in Count 1 apply to evaluate whether a deliberate
indifference claim is stated against Lt. Lee, Warden Lashbrooks, or McWilliams (mental health
staff):

Were these individuals aware that Plaintiff faced a serious risk of harm from his

deteriorating and infected tooth, and did they take steps to mitigate the harm to Plaintiff?
Plaintiff spoke personally to Lt. Lee on May 8, 2017, showed Lee the dangling tooth, and
complained that he was suffering great pain. Plaintiff asked Lt. Lee to help him get attention
from a health care provider. Lee responded by saying that if the nurse didn’t do anything, there
was nothing he could do, since he is not a dentist. (Doc. 2, p. 23). Lee was thus aware of
Plaintiff’s symptoms but did nothing to request medical or dental help for him. Plaintiff has
sufficiently pled a deliberate indifference claim against Lee that shall go forward in Count 3.
On May 10, 2017, Plaintiff wrote an emergency grievance and forwarded it to Warden

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Lashbrooks. (Doc. 2, p. 25). Because Plaintiff never received any response, it is unknown
whether Lashbrooks actually saw the emergency grievance. However, such emergency matters
are ordinarily sent to the warden’s attention. If Lashbrooks received the emergency grievance,
yet did nothing, those facts would support a deliberate indifference claim. Construing the facts
in Plaintiff’s favor, at this stage, the claim in Count 3 against Lashbrooks shall also proceed.
McWilliams met with Plaintiff on May 13, 2017, in response to Plaintiff’s request to
speak to a crisis team member, after his dental pain and other symptoms had continued
unaddressed for nearly 3 weeks.

After Plaintiff explained his problem and his ongoing

unsuccessful attempts to get treatment, McWilliams told Plaintiff he would make a referral to the
dentist. (Doc. 2, pp. 26-27). Plaintiff claims, however, that McWilliams never made the referral.
Taking Plaintiff’s factual allegations as true, McWilliams’ lack of action after being informed of
Plaintiff’s serious condition may amount to deliberate indifference.
The deliberate indifference claims in Count 3 against Lee, Lashbrooks, and McWilliams
shall proceed for further consideration.
Count 4 - Retaliation
In the First Amended Complaint, Plaintiff labeled this severed portion of the action as
“Deliberate Indifference/Retaliation.” (Doc. 2, p. 19). However, in his statement of claim, he
did not identify which Defendants allegedly took some adverse action toward him in retaliation
for some protected First Amendment Activity. Nonetheless, the Court shall evaluate whether the
pleading states a viable retaliation claim.
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement, activity which is protected under the First
Amendment.

See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v.

12

Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000);
Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988).
“A complaint states a claim for retaliation when it sets forth ‘a chronology of events from which
retaliation may plausibly be inferred.’” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000)
(citation omitted). The issue in a retaliation claim is whether the plaintiff experienced an adverse
action that would likely deter First Amendment activity in the future, and if the First Amendment
activity was “at least a motivating factor” in the defendants’ decision to take the retaliatory
action. Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009).
The following incidents may be connected to Plaintiff’s claim that he suffered retaliation.
On May 10, 2017, Nurse Laing threatened to write Plaintiff a ticket and send him to segregation
if he kept on talking to her about the tooth. (Doc. 2 p. 24). Later on May 10, Plaintiff sent his
emergency grievance to Warden Lashbrooks. (Doc. 2, p. 25). On May 15, Laing said she had
heard about Plaintiff’s grievance on her. After that conversation, Laing refused to give Plaintiff
any pain medication on May 15 and 16. (Doc. 2, p. 28). Before Plaintiff wrote the grievance,
Laing had previously refused to provide any pain medication on May 4, 8, 9, 10, and 11, just as
all the other nurses had done. On May 16, Nurse Keisha also mentioned Plaintiff’s grievance.
Keisha said she did not care about the grievance, and she continued to ignore Plaintiff’s
complaints regarding his tooth on May 16 and 17, just as she had done earlier on May 8 and 11,
2017. Id. On May 19, 2017, Nurse Shellby told Plaintiff that he “would regret writing a
grievance on her.” (Doc. 2, p. 30). This comment was made after Plaintiff had received some
treatment for losing the tooth, and he does not describe any further incident of Shellby denying
treatment to him.
Shellby’s general threat that Plaintiff would “regret” filing the grievance, like Laing’s

13

threat to send Plaintiff to segregation, does not violate the Constitution. Verbal threats such as
these do not constitute adverse “actions” that would support a retaliation claim. See Bridges, 557
F.3d at 552 (plaintiff must experience “an adverse action that would likely deter [his] protected
activity in the future”) (emphasis added). Plaintiff does not relate any action that Shellby took
against him after she made the threat. He thus fails to state a retaliation claim against Shellby
upon which relief may be granted.
Turning to Laing and Keisha, if these nurses had denied Plaintiff pain medication or
treatment for his tooth because he filed a grievance, that sequence of events would support a
claim for retaliation. The difficulty here is that Laing and Keisha continually denied Plaintiff
treatment or a referral for his dental problems, both before and after he filed his grievance over
the denial of care. Clearly, their refusal to treat him before they were aware of the grievance
cannot be attributed to a retaliatory motive. It is plausible that Laing’s and Keisha’s denial of
treatment after they learned of Plaintiff’s grievance could have been motivated in part by a desire
to retaliate against him. Further development of this claim will be required in order to attempt to
determine whether a retaliatory motive played a role in the denial of treatment from May 15-17,
2017. Accordingly, Plaintiff’s retaliation claim in Count 4 shall proceed for further review
against Laing and Keisha only.
Identification of Unknown Defendant
As noted above, Plaintiff may proceed with his claim in Count 1 against Nurse John Doe
#3. However, this Defendant must be identified with particularity before service of the First
Amended Complaint can be made on him.

Where a prisoner’s Complaint states specific

allegations describing conduct of individual prison staff members sufficient to raise a
constitutional claim, but the names of those defendants are not known, the prisoner should have

14

the opportunity to engage in limited discovery to ascertain the identity of those defendants.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). In this case,
Warden Lashbrooks is already named as a Defendant, and shall be responsible for responding to
discovery (formal or otherwise) aimed at identifying the John Doe Nurse #3. Guidelines for
discovery will be set by the United States Magistrate Judge. Once the name of Defendant Nurse
John Doe #3 is discovered, Plaintiff shall file a motion to substitute the newly identified
Defendant in place of the generic designation in the case caption and throughout the Complaint.
Pending Motion
The motion for preliminary injunction (Doc. 3) relating to Plaintiff’s ongoing need for
dental/medical care for his infected tooth, shall be referred to the United States Magistrate Judge.
Disposition
COUNT 2 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted. Defendant WEXFORD HEALTH SOURCES, INC. is DISMISSED
from this action without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), Plaintiff’s motion for
preliminary injunction (Doc. 3) is hereby REFERRED to United States Magistrate Judge
Stephen C. Williams, who shall resolve the request for injunctive relief as soon as practicable,
and issue a report and recommendation. Any motions filed after the date of this Order that relate
to the request for injunctive relief or seek leave to amend the complaint are also hereby
REFERRED to Judge Williams.
As to COUNTS 1, 3, and 4, the Clerk of Court shall prepare for Defendants MALL,
LAING,

MARSHALL,

CHATTEN,

TRIPP,

WILLIAMS,

GREGSON,

MEGEE,

OSEMEYER, RON, OSWALD, SUZY, MARTHA, BRENDA, KEISHA, SHELLBY, LEE,

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McWILLIAMS, LASHBROOKS, and NURSE JOHN DOE #3 (once identified): (1) Form 5
(Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). The Clerk is DIRECTED to mail these forms, copies of the following
documents:

the Memorandum and Order of May 31, 2017 (Doc. 1), the First Amended

Complaint (Doc. 2), the motion for preliminary injunction (Doc. 3), and this Memorandum and
Order to each Defendant’s place of employment as identified by Plaintiff. If a Defendant fails to
sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the
date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that
Defendant, and the Court will require that Defendant to pay the full costs of formal service, to
the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Service shall not be made on Defendant NURSE JOHN DOE #3 until such time as
Plaintiff has identified him by name in a properly filed motion for substitution of party. Plaintiff
is ADVISED that it is his responsibility to provide the Court with the name and service address
for this individual.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a

16

true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis was granted in the original case (No. 17-cv-494SMY, and no additional fee is assessed for this severed case at this time. See 28 U.S.C. §
1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: June 5, 2017

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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