NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 31, 2017 *
Decided November 20, 2017
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-1697
DAVID ROBERT BENTZ, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 13-cv-573-NJR-DGW
PARTHASARATHI GHOSH, et al., Nancy J. Rosenstengel,
Defendants-Appellees. Judge.
ORDER
David Bentz, an Illinois inmate who suffers pain from untreated cavities in his
teeth, appeals from the entry of summary judgment against him in this suit under
42 U.S.C. § 1983 asserting that officials at three prisons were deliberately indifferent to
his painful dental condition. He also appeals the denial of a preliminary injunction to
compel pain treatment, as well as the dismissal of both state-law claims and
deliberate-indifference claims against nonmedical prison officials. We affirm in part and
vacate in part, and remand for further proceedings.
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16-1697 Page 2
Bentz’s claims stem from his attempts to obtain dental fillings and pain relief
from medical staff at three separate prisons where he was detained in Illinois between
2010 and 2013. In his complaint he alleged that 15 named defendants and 6 unidentified
defendants—dental professionals, doctors, and nonmedical prison staff—failed to act
on his complaints of tooth pain and requests for dental treatment. The narrative begins
in late 2010 at Stateville Correctional Center, where, Bentz alleged, Medical Director
Dr. Parthasarathi Ghosh ignored his complaints of tooth pain (he did not specify which
tooth), eating difficulties, obvious swelling near the tooth, and request for pain
medication. Bentz also alleged that Christine Luce, a dental assistant at the prison, was
aware of his need for treatment and pain relief but refused to do anything for him but
schedule appointments. Bentz was examined in spring 2011 by an unidentified dentist
who said he could not give him a filling because the prison did not provide them.
Prison guards, grievance counselors, and the warden also ignored his complaints of
“chronic tooth pain.” Bentz soon thereafter was transferred to Pontiac Correctional
Center, whose medical director, Dr. Andrew Tilden, denied his requests for medication
and a referral for chronic tooth pain.
In late 2011 Bentz was transferred to Menard Correctional Center, where, he
alleged, an unidentified dentist refused to treat his teeth and another dentist, Dr. Robert
Stelfox, pronounced his teeth fine without examining them. Bentz attached to his
complaint an emergency grievance that he had filed with Menard’s warden saying that
he had been denied treatment for an abscessed tooth. The warden decided that this
grievance did not present an emergency and took no action. In his complaint Bentz also
alleged that five Menard correctional officers and a lieutenant did nothing to help after
he told them that he had tooth pain, showed them his swollen jaw, and asked for
medical attention.
Bentz filed this suit asserting violations of the Eighth Amendment and claims
under Illinois law for negligence and conspiracy to violate his rights. He sought
damages and injunctive relief, including “immediately arrang[ing] for [his] abscessed
tooth and chronic pain to be addressed.”
District Judge Patrick Murphy screened Bentz’s complaint, 28 U.S.C. § 1915A,
and allowed him to proceed on state-law negligence claims against all defendants and
on deliberate-indifference claims against the dental professionals and doctors at all
three prisons and against Menard’s warden. The judge concluded that Bentz failed to
allege claims of state-law conspiracy or claims of deliberate indifference against the
nonmedical defendants except Menard’s warden.
No. 16-1697 Page 3
With regard to the request for a preliminary injunction, Judge Murphy adopted
the recommendation of a magistrate judge to whom he had referred the matter for a
hearing and concluded that Bentz was not in any immediate danger because he could
eat, talk, and otherwise use his mouth and jaw. The district judge agreed with the
magistrate judge that Bentz’s condition “clearly” did not warrant a preliminary
injunction because Bentz had not presented evidence of irreparable harm, especially
since his pain “comes and goes on its own” and could be alleviated by over-the-counter
drugs.
The case was reassigned to District Judge Nancy Rosenstengel, who dismissed
the negligence claims against some of the defendants, concluding that the nonmedical
defendants were entitled to sovereign immunity. She also dismissed Bentz’s
medical-malpractice claim against Luce because he failed to attach to his complaint an
affidavit stating he had consulted a physician as required by 735 ILL. COMP. STAT. §
5/2-622.
Discovery ensued, and the following facts, construed in the light most favorable
to Bentz, were introduced. In December 2009 a prison dentist at Graham Correctional
Center told Bentz that he needed three fillings. One month later Bentz was transferred
to Stateville. In October 2011 Bentz asked Dr. Ghosh, Statesville’s medical director, for
pain medication and a dental referral because his tooth was “bothering him” and
causing problems eating, and he had pain in his tooth and visible swelling of his jaw.
Dr. Ghosh denied medication but referred him to a dentist; dental assistant Luce
scheduled Bentz for an appointment one week later. Bentz received x-rays, and a dentist
(not named in this action) told him that he would be scheduled to receive a filling in one
tooth. Luce scheduled Bentz for the next available appointment four months later, but
that appointment was postponed (for reasons not reflected in the record), and in May
2011 Bentz received a dental exam from a dentist who again took x-rays but provided
no fillings. He was scheduled for another appointment to receive fillings three months
later, but by then he was transferred to Pontiac.
After a three-month stay at Pontiac, where he unsuccessfully sought pain
medication for his tooth from Pontiac’s medical director, Bentz was transferred in
November 2011 to Menard. In May 2013 he reported to Dr. Robert Stelfox, a prison
dentist, with a swollen jaw; Bentz told Dr. Stelfox that he had an abscessed tooth and
needed pain medication and treatment. Without examining Bentz’s teeth, Dr. Stelfox
responded that there was nothing wrong with them. Weeks later Bentz sent the warden
an emergency grievance, saying that for four weeks he had been trying to obtain
No. 16-1697 Page 4
treatment for an abscessed tooth and that the prison dentist said there was nothing he
could or would do. The warden determined that Bentz’s condition was not an
emergency and denied the grievance without taking further action. Bentz forwarded the
grievance to the Illinois Administrative Review Board, which denied it in July 2013,
after he had already filed this suit. In May 2014 Bentz eventually received a filling in
one tooth, but he has continued to seek two additional fillings and pain treatment.
Dr. Tilden, Dr. Stelfox, and Menard’s warden moved for summary judgment on
the ground that Bentz had not exhausted his administrative remedies as required under
the Prison Reform Litigation Act. A magistrate judge held a hearing on the exhaustion
issue in accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Bentz testified that
he had grieved twice against Dr. Tilden about treatment during one exam but only in a
later grievance (not produced by the parties) did he mention inadequate dental care.
The magistrate judge agreed with the defendants’ position regarding exhaustion. As he
explained, Bentz’s testimony that he had filed a grievance against Dr. Tilden was not
credible, Bentz had not filed a grievance about the warden, and Bentz did not timely
appeal the denial of his emergency grievance against Dr. Stelfox.
Judge Rosenstengel adopted the magistrate judge’s recommendation and entered
summary judgment for Dr. Tilden, Dr. Stelfox, and Menard’s warden. Judge
Rosenstengel accepted the magistrate judge’s adverse credibility finding; according to
her, it “simply does not make any sense” that Bentz would file two grievances weeks
apart complaining that Dr. Tilden had treated him inadequately in the same exam and
Bentz failed to offer “specifics” about the contents of his second grievance. The judge
also agreed that Bentz did not exhaust his administrative remedies against Dr. Stelfox
because he filed suit before receiving a final determination from the Administrative
Review Board. And the judge agreed that Bentz had not filed a grievance complaining
about the conduct of Menard’s warden.
Months later Dr. Ghosh and dental assistant Luce moved for summary
judgment, contending that Bentz’s deliberate-indifference claims were unsubstantiated.
Dr. Ghosh argued that Bentz’s negligence claim failed as a matter of law.
The district judge eventually determined that Bentz’s deliberate-indifference
claims were unsupported and granted Dr. Ghosh’s and Luce’s motions for summary
judgment. She concluded that there was no evidence that Dr. Ghosh knew that Bentz
was suffering significant or debilitating pain when he denied Bentz pain medication:
indeed, “Ghosh responded appropriately in ensuring [that] a request was submitted for
[p]laintiff to be seen by a dentist who could properly evaluate his dental condition.”
No. 16-1697 Page 5
The judge also concluded that Luce could not have been deliberately indifferent toward
Bentz’s needs because, as the record showed, Luce “scheduled him to see the dentist as
required and deferred to the medical professional’s opinions as to what care [p]laintiff
should receive.” Further, Bentz’s negligence claim against Dr. Ghosh failed because he
didn’t attach the necessary affidavit required by Illinois law for a medical-malpractice
suit. 735 ILL. COMP. STAT. § 5/2-622. Finally, invoking Rule 41(b) of the Federal Rules of
Civil Procedure, the judge dismissed the claims against the unidentified defendants
because Bentz—despite having ample time and the opportunity to do so— failed to take
steps to identify them.
On appeal Bentz first challenges the entry of summary judgment for Dr. Ghosh,
contending that he created a triable issue of deliberate indifference by offering evidence
that Dr. Ghosh, in refusing to provide him pain medication, overlooked his swollen jaw
and ignored his complaint of pain that caused him problems eating.
To establish a claim of deliberate indifference, Bentz must show both that his
condition was objectively serious and that the defendants were deliberately indifferent
to that condition. Farmer v. Brennan, 511 U.S. 825, 836 (1994); King v. Kramer, 680 F.3d
1013, 1018 (7th Cir. 2012). The parties do not dispute that Bentz’s tooth decay and
related pain may constitute a serious medical condition. See Berry v. Peterman, 604 F.3d
435, 440 (7th Cir. 2010) (“Tooth decay can constitute an objectively serious medical
condition because of pain and the risk of infection.”). Medical doctors, like Dr. Ghosh,
may be found deliberately indifferent if they discount, without investigating, a
prisoner’s symptoms of a serious medical need. See Rivera v. Gupta, 836 F.3d 839, 841–42
(7th Cir. 2016). A few days’ delay in addressing a painful but readily treatable condition
can support a claim of deliberate indifference. See Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 830 (7th Cir. 2009) (deciding that state employees could be found
deliberately indifferent from a four-day delay in treating a prisoner who complained
that his IV needle was causing him serious pain); Edwards v. Snyder, 478 F.3d 827, 830–
31 (7th Cir. 2007) (concluding that a prisoner stated a deliberate-indifference claim by
alleging a two-day delay in treating a dislocated finger that caused unnecessary pain
and permanent disfigurement).
We conclude that a fact question exists concerning whether Dr. Ghosh was aware
that Bentz’s pain was significant. Dr. Ghosh said in his affidavit that Bentz never
mentioned pain during the appointment, but Bentz testified at his deposition that he
complained about pain from his tooth and related swelling (a sign of infection). Bentz
said in his verified complaint that this swelling was obvious and that he mentioned it to
No. 16-1697 Page 6
Dr. Ghosh. Bentz added in an affidavit that he told Dr. Ghosh that the pain was causing
problems eating. Dr. Ghosh was responsible for investigating whether Bentz’s
complaint of pain that caused swelling and problems eating warranted immediate
treatment, yet he took no further steps except to refer Bentz for a dental appointment to
take place at some unspecified future time. Even if the referral could be deemed as
some form of treatment, Dr. Ghosh could be held liable for ignoring some but not all of
Bentz’s serious medical needs. See Berry, 604 F.3d at 441. Bentz’s evidence, if true, shows
that Dr. Ghosh disregarded Bentz’s need for immediate pain relief. Dr. Ghosh’s decision
to make merely a referral exposed Bentz to enduring pain for an indefinite period of
time, at least until he could be seen and treated by a dentist. Bentz’s evidence, if true,
shows that his dental pain has lasted from 2010 past the filing of this suit in mid-2013.
Bentz next challenges the entry of summary judgment for Dr. Stelfox, contending
generally that he exhausted available administrative remedies before filing suit, even
though he sued before the Administrative Review Board acted on his appeal of the
emergency grievance. Bentz asserts further, with regard to the merits, that a jury
reasonably could conclude from his testimony that Dr. Stelfox did nothing in response
to his complaints of an abscessed tooth and swollen jaw.
As a preliminary matter, Bentz, contrary to the district court’s conclusion,
exhausted his administrative remedies with regard to his claims against Dr. Stelfox.
Bentz sued the doctor only after the warden had rejected his emergency grievance, and
an Illinois inmate who asks the warden to handle a grievance on an emergency basis
need not resubmit that complaint as a normal grievance after the warden concludes that
the grievance does not present an emergency. Thornton v. Snyder, 428 F.3d 690, 694
(7th Cir. 2005) (citing 20 ILL. ADM. CODE tit. 20, § 504.840). Under these circumstances
Illinois rules do not require him to appeal that decision to the Administrative Review
Board.
As for the merits, a jury reasonably could find that Dr. Stelfox was deliberately
indifferent to Bentz’s serious medical needs based on Bentz’s testimony that the doctor
ignored his pain complaints and his tooth abscess. Dentists know that “a patient who
has reported an abscess . . . needs prompt medical treatment” because if the report is
correct, the tooth will “get worse the longer treatment [is] delayed” and the patient will
“suffer acutely until the abscess [is] treated.” Dobbey v. Mitchell-Lawshea, 806 F.3d 938,
940–41 (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.“ Id. at 940. Bentz testified at the Pavey
No. 16-1697 Page 7
hearing that Dr. Stelfox responded to his complaint of an abscessed tooth and swelling
of the jaw by pronouncing—without any examination—that nothing was wrong with
Bentz’s teeth. Bentz called into question this pronouncement by introducing a
health-transfer summary from 2009 in which a dentist at Graham marked three of his
teeth as “treatment needed–completed restorations.” After Dr. Stelfox’s
pronouncement, according to statements Bentz made in his emergency grievance, he
experienced severe pain for weeks, especially when he ate and drank.
Next Bentz generally challenges the entry of summary judgment to Dr. Tilden on
exhaustion grounds and insists that Judge Rosenstengel should have believed his
testimony that he filed a grievance about Dr. Tilden’s dental care and received no
response. But Bentz does not meaningfully challenge the district judge’s decision to
accept the magistrate judge’s finding that his testimony was not credible. See FED. R.
APP. P. 28(a)(9)(A); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
Bentz also asserts that the entry of summary judgment for dental assistant Luce
was erroneous because he presented evidence that she was aware of his tooth pain and
need for care but never ensured that he received treatment. The district judge correctly
concluded, however, that no jury could reasonably find that Luce’s actions constituted
deliberate indifference. Bentz has not disputed Luce’s statement in her affidavit that her
duties were limited to scheduling appointments and assisting the dentist, and the
constitution does not compel Luce to do the dentist’s job of treating Bentz. See Burks
v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009).
Bentz contests the entry of summary judgment to Menard’s warden, but he does
not articulate a basis for disturbing the district judge’s ruling that he failed to exhaust
his administrative remedies against the warden. See FED. R. APP. P. 28(a)(9)(A);
Anderson, 241 F.3d at 545.
Bentz next challenges the dismissal at screening of his deliberate-indifference
claims against the nonmedical defendants. He contends that his alleged statements to
them about his chronic pain and swelling supported an inference that they knew his
pain was serious.
The district court properly dismissed most of these claims (i.e., complaints of
chronic tooth pain that could be minor), but Bentz stated a plausible claim against
correctional officers Sadler and Lair. A prisoner states an Eighth Amendment claim
against nonmedical prison officials if he alleges that they recklessly disregarded a
substantial risk of serious pain to the prisoner. See Gomez v. Randle, 680 F.3d 859, 865–66
No. 16-1697 Page 8
(7th Cir. 2012). Bentz’s allegations regarding Sadler and Lair support an inference that
they understood his tooth pain to be serious. Sadler allegedly responded to Bentz’s
report of an abscessed tooth by saying that “he knew how serious a[n] abscessed tooth
can be” based on his “personal knowledge and/or experience” but did nothing other
than comment that Bentz’s “abscessed tooth looked very serious.” Similarly, Lair
allegedly responded to Bentz’s request for pain relief and difficulties swallowing by
saying, “I am not going to do anything for you.”
Bentz next challenges the dismissal of his state-law negligence claims, asserting
generally that his claims must be reinstated against the medical defendants and
specifically that his negligence claim must be reinstated against Saddler and Lair
because they are not entitled to sovereign immunity. We agree with only his latter
argument. In dismissing the negligence claims against these two, the district judge
relied only on the Illinois doctrine of sovereign immunity, but that doctrine will not
apply to state-law claims against state officials who allegedly violate statutory or
constitutional law. See Murphy v. Smith, 844 F.3d 653, 660 (7th Cir. 2016) (citing Leetaru v.
Bd. of Trs. of Univ. of Ill., 32 N.E.3d 583 (Ill. 2015)), cert. granted, No. 16-1067 (Aug. 25,
2017). In his appellate brief, Bentz has not developed an argument that the negligence
claims against Dr. Ghosh and Dr. Stelfox were erroneously dismissed. See FED. R. APP.
P. 28(a); Anderson, 241 F.3d at 545.
Bentz generally challenges the dismissal of his conspiracy claim, but he failed to
allege any plausible agreement among the defendants to deprive him of rights. See FED.
R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).
Bentz next generally contests the dismissal of the unidentified defendants
(medical staff at the three prisons). The judge did not abuse her discretion, however,
because a dismissal under Rule 41(b) is proper when, as here, there is a clear record of
delay. See Lewis v. Sch. Dist. # 70, 648 F.3d 484, 488 (7th Cir. 2011). Bentz twice missed
the deadline for identifying these defendants, first by four months then by one month,
and his justification for a third extension—confiscation of his legal papers—was
soundly rejected by the judge on the ground that Bentz did not explain how he needed
those lost papers to identify the defendants.
Lastly, Bentz challenges the denial of his motion for a preliminary injunction
ordering Menard’s warden to address his pain, and he maintains that the district judge,
by concluding that he offered no evidence of irreparable harm, overlooked testimony
that he would experience tooth pain if prison staff continued to deny him treatment.
Irreparable harm means an injury that money cannot repair. See D.U. v. Rhoades,
No. 16-1697 Page 9
825 F.3d 331, 339 (7th Cir. 2016). The judge’s denial of injunctive relief rests on an
incorrect conclusion that the staff’s refusal to treat Bentz’s intermittent tooth pain,
which affected his ability to eat and swallow, was not evidence of irreparable harm. An
official’s refusal to treat pain that affects a prisoner’s daily living may be irreparable
harm, see Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 682 (7th Cir. 2012), and
pain may be irreparable harm though it is episodic and treated without prescription
drugs, see Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (affirming a preliminary
injunction requiring prison officials to release a prisoner from prolonged confinement in
his cell; prisoner established irreparable harm by presenting evidence that confinement
caused his headaches, a skin condition, and back pain on several occasions). The
warden of Bentz’s place of confinement must be reinstated for further proceedings on
Bentz’s motion for a preliminary injunction. See Gonzalez v. Feinerman, 663 F.3d 311, 315
(7th Cir. 2011).
We VACATE the entry of summary judgment on the Eighth Amendment claims
against Dr. Ghosh and Dr. Stelfox and the orders dismissing the Eighth Amendment
and negligence claims against Sadler and Lair. We also VACATE the denial of Bentz’s
initial request for a preliminary injunction. We AFFIRM the judgment with respect to
the conspiracy claim against all defendants and the claims against Dr. Tilden, Luce,
Berner, Bishop, Bledsoe, Evielsizer, Franklin, Hosselton, Tourville, Wooldridge, and the
unidentified defendants. The case is REMANDED for further proceedings.
David Bentz v. Parthasarathi Ghosh
Combined Opinion