Knox v. Mall et al

Filing 83

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Following a de novo review of the record, the undersigned finds that Plaintiff Ted Knox has not made a clear showing that he is entitled to preliminary relief. Accordingly, Knox's objections to t he report and recommendation are OVERRULED. The Court ADOPTS the recommendations of Magistrate Judge Williams and DENIES Knox's motion for preliminary injunction (Doc. 3 ). Signed by Chief Judge Michael J. Reagan on 11/29/2017. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TED KNOX,
Plaintiff,
vs.
NURSE MALL, NURSE LAING, NURSE
MARSHALL, NURSE CHATTEN,
NURSE TRIPP, NURSE WILLIAMS,
NURSE GREGSON, NURSE MEGEE,
DOCTOR OSEMEYER, NURSE RON,
NURSE SUZY, NURSE MARTHA,
NURSE BRENDA, NURSE KEISHA,
NURSE SHELLBY, LT. LEE,
MCWILLIAMS, WARDEN
LASHBROOK, BEN PLUMLEE, and
DOCTOR NEWBOLD,
Defendants.

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Case No. 17-CR-574-MJR-SCW

MEMORANDUM & ORDER
REAGAN, Chief Judge:
On May 31, 2017, this case, including a motion for preliminary injunction (Doc.
3), was severed from a related case filed by Plaintiff Ted Knox (Case No. 17-494-SMYRJD). Knox brings an Eighth Amendment claim for deliberate indifference to his serious
dental needs against the defendants for allegedly denying and delaying care for an
abscessed and infected tooth in April and May 2017. Defendant Lashbrook responded
to the motion for preliminary injunction on June 26, 2017 (Doc. 21). Magistrate Judge
Stephen C. Williams held an evidentiary hearing on June 28, 2017, and later issued a
report & recommendation (Doc. 35) recommending that the undersigned deny Knox’s

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motion. Knox timely filed objections to the report & recommendation (Doc. 37) to which
Defendants did not respond.
Timely objections having been filed, the Court undertakes de novo review of the
portions to the Report to which Plaintiff specifically objected. 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 72(b); SDIL-LR 73.1(b). The undersigned can accept, reject, or modify
Magistrate Judge Williams’ recommendations, receive further evidence, or recommit
the matter with instructions. Id. For the reasons stated below, the Court ADOPTS
Magistrate Judge Williams’ recommendations and DENIES Knox’s motion for a
preliminary injunction.
BACKGROUND
Knox alleges that he has been denied adequate care for an abscessed and infected
tooth. He began having issues with one of his front teeth on April 23, 2017, so he
submitted a request for medical attention. Over the next several days, his tooth became
very painful, leading to blood and pus in his mouth and to the tooth growing loose. On
April 30, 2017, Knox alleges that he submitted another medical request form after
waking up with blood on his pillow. His issues with unsuccessful medical requests and
blood and pus from his tooth continued for several weeks, during which time he
allegedly showed his tooth to numerous nurses who came by his cell.
On May 10, 2017, Knox claims that he submitted an emergency grievance to
Warden Lashbrook, but he never received a response. By May 18, 2017, Knox’s tooth
broke off completely and began bleeding profusely, at which point he was taken to the

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healthcare unit where he saw Dr. Asselmeier1, a dentist, and was given antibiotics and
ibuprofen. Knox allegedly asked for an MRI to determine the extent of his infection and
for a dental partial to cover his now-missing tooth, but his requests were denied.
Defendant Lashbrook responded to Knox’s motion for preliminary injunction,
providing an affidavit from Gail Walls, the Healthcare Unit Administrator at Menard
Correctional Center. According to Walls, Knox suffers from chronic periodontitis for
which he receives treatment regularly. On June 20, 2017, Knox met with dental director
Newbold who prescribed new antibiotics for Knox’s periodontitis and scheduled a
follow-up appointment. Newbold told Knox that the dental partial he wanted was not a
viable option due to his periodontitis. At the evidentiary hearing, Knox admitted that,
with the antibiotics prescribed by Newbold, the swelling in his mouth improved, but he
still would like an MRI, as he is concerned that the infection might have spread
elsewhere in his body. He believes an MRI could show where any infection has spread
and believes that his tooth issue is causing an issue with his sinuses.
Dr. Asselmeier testified to Knox’s ongoing periodontal issues and indicated that
the extent of Knox’s bone loss as a result of the disease does not make him a good
candidate for the partial Knox seeks. Asselmeier acknowledged that he saw Knox on
May 18, 2017, for a tooth that he said Knox knocked out and that was lost due to Knox’s
periodontitis. He testified that he did not see any signs of infection at that time and did
not prescribe antibiotics, despite Knox having a pill sheet that showed he was given

Knox, in his complaint, names Dr. Osemeyer. The correct spelling of Dr. Osemeyer’s last name is
Asselmeier.
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antibiotics that day. According to Asselmeier, despite Knox’s belief that an MRI is
necessary, MRIs are not typically used in dentistry.
After the hearing, Magistrate Judge Williams requested additional records from
the parties. Defendants submitted additional medical records, and Plaintiff provided
records related to prescription antibiotics he received. After reviewing the evidence,
Magistrate Judge Williams recommended that the undersigned deny Knox’s motion for
a preliminary injunction. According to the report and recommendation, Knox’s
testimony and medical records demonstrate that he is being treated by the dental staff,
as he had received thirty days’ worth of antibiotics and was scheduled for a follow-up
appointment. Judge Williams found Dr. Asselmeier’s testimony credible that Knox did
not require an MRI because they generally are not used in dentistry. Ultimately, the
report and recommendation concluded that the dental staff was working to evaluate
whether Knox could receive a successful dental partial with the severity of his
periodontitis and that Knox did not face irreparable harm if he did not receive one
during the pendency of his case.
Knox timely filed objections in which he states that he believes Defendants
falsified his medical records in various ways and engaged in “gamesmanship” by
scheduling a dental appointment for him shortly before the evidentiary hearing. He
complained that he had not received a follow-up appointment and did not believe he
would. He restated his belief that he needs an MRI to show the extent of his infection
and blames Menard for the severity of his periodontitis. He also argues that any delay
in receiving the dental partial will cause him additional dental problems. Knox’s
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objections generally challenge two conclusions in the report and recommendation: the
conclusion that Defendants are not required to give Knox an MRI at this stage and the
finding that he will not be irreparably harmed if he does not receive a new dental
partial while this case is pending.
LEGAL STANDARDS
As this review is de novo, the Court conducts an “independent review of the
evidence and arguments without giving any presumptive weight to the magistrate
judge’s conclusion,” and “is free, and encouraged, to consider all of the available
information about the case when making this independent decision.” Mendez v.
Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013).
A preliminary injunction is “an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)(emphasis in original).
Accord Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary
injunction is an extraordinary remedy never awarded as of right”)(citation omitted).
To secure a preliminary injunction, the movant must show (1) that he is likely to
succeed on the merits, (2) that he is likely to suffer irreparable harm without the
injunction, (3) that the harm he would suffer is greater than the harm a preliminary
injunction would inflict on defendants, and (4) that the injunction is in the public
interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010)(citing Winter, 555 U.S. at 20).
The “considerations are interdependent: the greater the likelihood of success on the
merits, the less net harm the injunction must prevent in order for preliminary relief to
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be warranted.” Judge, 612 F.3d at 546. (citation omitted)
In the context of prisoner litigation, there are further restrictions on courts’
remedial power.

The scope of the court’s authority to enter an injunction in the

corrections context is circumscribed by the Prison Litigation Reform Act (PLRA).
Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA, preliminary
injunction relief “must be narrowly drawn, extend no further than necessary to correct
the harm the court finds requires preliminary relief, and be the least intrusive means
necessary to correct that harm.” 18 U.S.C. §3626(a)(2). See also Westefer, 682 F.3d at 683
(“[T]he PLRA enforces a point repeatedly made by the Supreme Court in cases
challenging prison conditions: prison officials have broad administrative and
discretionary authority over the institutions they manage.”)(internal quotation marks
and citation omitted). The Seventh Circuit has described injunctions like the one sought
here, where an injunction 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); and W.A. Mack, Inc. v. Gen.
Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958)).
ANALYSIS
To show that he has a likelihood of success on the merits of his Eighth
Amendment claim, Knox must show that Defendants were deliberately indifferent to
his serious medical needs. Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (quoting
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Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks omitted)).
“Deliberate indifference to 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).
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. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (citing Johnson v.
Snyder, 444 F.3d 579, 584 (7th Cir. 2006)). The first consideration is whether the prisoner
has an “objectively serious medical condition.” Arnett, 658 F.3d at 750. Accord Greeno,
414 F.3d at 653. “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 v. Brennan, 511 U.S. 825, 828
(1994) (violating the Eighth Amendment requires “deliberate indifference to a
substantial risk of serious harm”) ((internal quotation marks omitted) (emphasis
added).

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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. Id. 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 v. Rector, 123 F.
Supp. 3d 1076, 1086 (S.D. Ill. 2015) (“isolated occurrences of deficient medical
treatment are generally insufficient to establish . . . deliberate indifference”).
Knox has not established that he is likely to succeed on the merits of his
deliberate indifference claim. Assuming, arguendo, that Knox’s dental issues are an
objectively serious medical condition, there is not sufficient evidence in the record at
this time to demonstrate that Defendants are disregarding his need for treatment.
Rather, the evidence before the Court demonstrates that Knox’s dental issues are being
taken seriously by dental staff at Menard. They have met with him and prescribed
antibiotics for swelling in his mouth, and Knox testified that the swelling improved
after he received the prescription. Dr. Asselmeir testified that an MRI is not typically
used in dentistry and that the course of treatment they followed with Knox should
allow the defendants to better evaluate how to treat his condition. Other than Knox’s
disbelief that Defendants will continue to treat him, the record shows that Defendants
are addressing, rather than disregarding, his dental needs at this time, negating the
likelihood that Knox will succeed on the merits in this case.
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There is an interdependence between the likelihood of success and a likelihood
of irreparable harm absent an injunction (i.e., the higher the likelihood of success, the
less net harm must be prevented, Judge, 612 F.3d at 546). As the likelihood of success on
the merits is low, Knox must be able to show more net harm in order to tip the equities
in his favor, but the record does not support finding that Knox will suffer irreparable
harm if he is not granted preliminary relief. Dr. Asselmeier testified that MRIs typically
are not used to treat dental issues and that Knox may not be able to receive a dental
partial due to the severity of his periodontal disease. Defendants are working to treat
Knox’s dental issues and are aware that he would like a dental partial. Other than
Knox’s belief that he needs both courses of treatment, there is nothing in the record to
suggest that Knox will face irreparable harm if Defendants are not ordered to give him
the relief he seeks at this stage.
CONCLUSION
Following a de novo review of the record, the undersigned finds that Plaintiff Ted
Knox has not made a clear showing that he is entitled to preliminary relief.
Accordingly, Knox’s objections to the report and recommendation are OVERRULED.
The Court ADOPTS the recommendations of Magistrate Judge Williams and DENIES
Knox’s motion for preliminary injunction (Doc. 3).
IT IS SO ORDERED.
DATED: November 29, 2017

s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
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