Mcgowan v. Hulick

• Decision Date: 20 July 2010
• Docket Number: No. 09-2991.,09-2991.
• Citation: 612 F.3d 636
• Parties: Michael McGOWAN, Plaintiff-Appellant,v.Donald A. HULICK, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

612 F.3d 636

Michael McGOWAN, Plaintiff-Appellant,v.Donald A. HULICK, et al., Defendants-Appellees.

No. 09-2991.

United States Court of Appeals, Seventh Circuit.

Submitted May 26, 2010.^*

Decided July 20, 2010.

Michael McGowan (submitted), Menard, IL, pro se.

Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Michael McGowan had an upper molar extracted in January 2007 while he was imprisoned at Illinois's Menard Correctional Center, but the extraction site did not heal and became infected. He was still suffering from complications in November 2007, when a specialist performed the second of two surgeries to close the hole left by the extraction. McGowan then brought this pro se lawsuit under 42 U.S.C. § 1983 and Illinois law, claiming that the dentist who performed the extraction, the prison's dental director, the regular prison physician, and the prison warden were all negligent and deliberately indifferent to his plight. At screening the district court dismissed the complaint with prejudice for failure to state a claim, see 28 U.S.C. § 1915A(b)(1), reasoning that McGowan's allegations could not support a finding of deliberate indifference, as opposed to negligence. McGowan moved for reconsideration, but only with respect to Dr. John Gardner, the dentist who extracted his tooth, and Dr. Chapman, the prison's dental director. The district court denied the motion and allowed the dismissal to stand for all four defendants. McGowan's appeal concerns only Drs. Gardner and Chapman.

The complaint, supplemented by medical and dental records, provides the information on which we must rely at this stage; we accept its factual allegations as true and draw all reasonable inferences in McGowan's favor. See Erickson v. Pardus, 551 U.S. 89, 90, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). McGowan's molar began hurting in early November 2006, when he began filing almost-weekly sick-call requests describing his increasing pain. His pleas went unanswered until he saw Gardner on January 30, 2007. McGowan asked Gardner to provide a filling for the tooth, but Gardner told him the tooth would have to be extracted because “Menard doesn't do fillings.” That statement, says McGowan, was a lie, but he agreed to the extraction rather than endure the pain any longer. The procedure went badly. Although Gardner administered two shots of a local anesthetic, McGowan nonetheless experienced excruciating pain. The tooth fragmented during the extraction, and, McGowan believes, Gardner used nondental instruments, including an ice pick, to dig the splinters from his gums. McGowan has no other complaints against Gardner. His follow-up care was provided by another prison dentist, who is not a defendant.

In the month following the procedure, McGowan's pain increased. He was given aspirin, but the medication provided no relief. On February 28, 2007, he awoke to find that a mass of tissue the size of a golf ball had broken through the stitches; it was so large that he could not close his mouth. He saw his treating dentist, who excised some of the tissue, gave him Tylenol and salt, and recommended to the prison dental director, Chapman, that McGowan see an oral surgeon. But the Tylenol was also ineffective in reducing his pain, and the visit to the oral surgeon was not forthcoming. Chapman still had not approved that consultation by March 28 when McGowan's prison dentist saw him on an emergency basis for more pain and swelling at the extraction site and diagnosed him with a “sinus perforation with fistula tract.” (This is no laughing matter: a sinus perforation is a complication that may occur during the extraction of an upper molar.) See Wikipedia, Dental Extraction, http:// en. wikipedia. org/ wiki/ Dental__ extraction (last visited July 15, 2010). A fistula is basically a passageway-in this case, one that connected McGowan's mouth to his sinus cavity. See Medline Plus, Fistula, http:// www. nlm. nih. gov/ medlineplus/ ency/ article/ 002365. htm (last visited July 15, 2010). See also Stedman's Medical Dictionary 736 (28th ed.2006) (noting that a pathologic connection between mouth and maxillary sinus is called an oroantral fistula and is most commonly a complication of removing an upper molar). McGowan alleges that he continued to be in pain as the infection spread up his face and that the mass in his mouth and the foul-tasting discharge kept him from eating, causing him to lose weight.

By April 9, 2007, McGowan had received Chapman's approval to see the contract oral surgeon on the surgeon's next regular visit to Menard. That visit was scheduled for the week of April 23, nearly two months after McGowan's treating dentist had sought approval for intervention by an oral surgeon. But the surgeon cancelled his visit, and McGowan was told he would have to wait another three months until the surgeon came again. Unwilling to postpone treatment for so long, McGowan filed an emergency grievance on April 30. That grievance prompted the treating dentist to request a referral to an oral surgeon at an outside hospital and to prescribe a splint to cover the hole in McGowan's mouth so that he could eat. But when McGowan received the splint two weeks later, the protrusion-now about the size of a large marble-prevented the splint from fitting properly and without pain, and so he was unable to use it.

Around this time, Chapman approved the outside referral, and McGowan finally saw an oral surgeon on May 25, 2007. But the surgeon announced that he was not qualified to treat McGowan's injury and recommended that McGowan see an ear, nose, and throat (“ENT”) specialist. That recommendation did not reach Menard for another two weeks, apparently because the oral surgeon's office had the wrong fax number. This meant that the new request for the ENT specialist was not submitted for approval until June 11. Dental records document that earlier, on June 6, McGowan's treating dentist had personally advised Chapman of the need to expedite the referral, but Chapman waited until June 20 to give his approval. By then, McGowan alleges, nasal mucus was draining out of the extraction site instead of his nose, and the prison doctor had begun treating him for a sinus infection.

Finally, on June 29, 2007, McGowan was evaluated by an ENT specialist, who ordered a CT scan of McGowan's sinuses before proceeding with treatment. The CT scan was approved the next day but did not occur until July 16. On August 3 the ENT specialist performed a sinus endoscopy, which is a procedure to remove blockages from the sinuses. See eHealthMD, What Is Endoscopic Sinus Surgery?, http:// www. ehealth md.com/library/endosinus/ess__ whatis.html (last visited July 15, 2010). Unfortunately, McGowan's pain continued, the extraction site did not heal, and the hole from his mouth to his sinus allowed food to enter his nose when he ate. The ENT specialist performed another surgery on November 2 to remove the tissue mass and close the hole.

At screening the district court concluded that McGowan's allegations did not describe deliberate indifference on the part of either Gardner or Chapman; it therefore dismissed the case. The court did not mention the negligence allegations. It is possible that it implicitly declined to exercise its supplemental jurisdiction, see 28 U.S.C. § 1367(c), but the dismissal apparently addressed the entire complaint and was with prejudice. The court reasoned that McGowan's allegations about the tooth extraction described only negligence by Gardner and not deliberate indifference. The court then concluded that the May 2007 referral to an outside oral surgeon and the June 2007 referral to an ENT specialist negated the possibility that any of the remaining defendants withheld medical care from McGowan. The court acknowledged that McGowan's treatment had been dragged out over a long time, but it thought that “a delay in process does not constitute deliberate indifference.”

McGowan maintains that his complaint states a claim against Gardner and Chapman for deliberate indifference. He stresses that Gardner essentially forced him to have the molar extracted by falsely stating that fillings are not available to Menard inmates and then performed a “grossly deficient procedure.” Chapman, he continues, purposely delayed his treatment solely for economic reasons, leaving him now with permanent structural damage to his oral and nasal cavity. Our review of a dismissal under § 1915A for failure to state a claim is de novo. Santiago v. Walls, 599 F.3d 749, 755-56 (7th Cir.2010).

The Eighth Amendment prohibits cruel and unusual punishment; that guarantee encompasses a prisoner's right to medical care. It is well established that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quotation marks and citation omitted). This principle applies equally to dental care. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir.2010). But negligence, even gross negligence, does not violate the Constitution. Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). Only deliberate indifference or worse in the face of a serious medical need will do. Estelle, 429 U.S. at 103-04, 97 S.Ct. 285; Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.2008). A delay in treatment may constitute deliberate...