United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Ortiz, Jr., a prisoner without a lawyer, filed a complaint
including a request for preliminary injunctive relief seeking
dental treatment. ECF 2. The Warden was ordered to file a
response to the request for a preliminary injunction along
with his answer, and he has done so. ECF 12. Ortiz has filed
a reply. ECF 13.
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). To obtain a
preliminary injunction, the moving party must show: (1) he
will suffer irreparable harm before the final resolution of
his claims; (2) available remedies at law are inadequate; and
(3) he has a likelihood of success on the merits. See
BBL, Inc. v. City of Angola, 809 F.3d 317, 323-24 (7th
Cir. 2015). The court then “weighs the competing harms
to the parties if an injunction is granted or denied and also
considers the public interest.” Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). An
injunction ordering the defendant to take an affirmative act
rather than merely refrain from specific conduct is
“cautiously viewed and sparingly issued.”
Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th
Cir. 1997) (quotation marks and citation omitted). It is true
that every inmate is entitled to receive constitutionally
adequate medical care. Estelle v. Gamble, 429 U.S.
97, 104-05 (1976). However, before an inmate can obtain
injunctive relief, he must make a clear showing that the
medical care he is receiving violates the Eighth Amendment
prohibition on cruel and unusual punishment. See Westefer
v. Neal, 682 F.3d 679, 683 (7th Cir. 2012); Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997).
who is currently housed at the Westville Correctional
Facility (WCF), alleges he has been denied adequate dental
treatment since March of 2018. According to Ortiz's
dental records, Dr. Pearcy saw Ortiz on March 15, 2018,
perform an amalgam restoration of tooth number 20. ECF 12-1
at 2; ECF 12-2 at 16. On April 9, he saw Ortiz again, this
time to surgically remove the retained root of tooth number
12. Id. During this visit, Ortiz informed Dr. Pearcy
that the filling of tooth number 20 had fallen out, and he
was subsequently scheduled for another appointment to address
the filling issue. Id. Although Ortiz requested that
“all his teeth be removed [due] to the filling not
taking” (ECF 13 at 1), Dr. Pearcy attempted to restore
the cavity and secure the filling in tooth number 20 using
dentin and enamel bonding on May 16, 2018. ECF 12-1 at 2;
ECF 12-2 at 17. The filling fell out later that same evening;
Ortiz attempted to contact Dr. Pearcy, but no one answered
the phone. ECF 2 at 3; ECF 13 at 1.
subsequently filed requests for healthcare, which he claims
went unanswered. ECF 13 at 1. However, records show that a
follow-up visit with Dr. Pearcy was scheduled for July 9,
2018, pursuant to a Health Care Request form filed on May 29,
2018, to evaluate whether tooth number 20 could be restored.
ECF 12-1 at 2; ECF 12-2 at 17. Ortiz did not show up to that
appointment due to his dorm being on lockdown at the time.
ECF 12-1 at 2-3; Id. When Dr. Pearcy's clinic
staff attempted to reschedule the appointment, it was
discovered that Ortiz had been transferred to another complex
at WCF and was assigned to another dental clinic. ECF 12-1 at
3. Dr. Pearcy attests that, due to the transfer, he no longer
has any contact with Ortiz regarding his dental care.
to Ortiz's dental records, he was scheduled to see Dr.
Wilkinson, another dentist at WCF, on February 15, 2019. ECF
12-2 at 17. However, Ortiz refused treatment and refused to
sign a release of liability form. Id. Ortiz admits
refusing treatment and states it was because “Dr.
Wilkinson and Dr. Pearcy are colleagues; plus, the treatment
of filling the cavity is ineffective [due] to the decaying of
the tooth.” ECF 13 at 4.
initial, and ultimately dispositive matter, the court must
address the effect of Ortiz's transfer on his pending
claim for injunctive relief. “A court's power to
grant injunctive relief only survives if such relief is
actually needed.” Nelson v. Miller, 570 F.3d
868, 882 (7th Cir. 2009) (abrogation on other grounds
recognized by Jones v. Carter, 915 F.3d 1147, 1149
(7th Cir. 2019)). Injunctive relief is available when
“there exists some cognizable danger of recurrent
violation, something more than the mere possibility.”
Id. (quoting United States v. W.T. Grant
Co., 345 U.S. 629, 633 (1953)). Here, Ortiz has been
granted leave to proceed against Dr. Pearcy for injunctive
relief to provide him with adequate dental care, as required
by the Eighth Amendment. However, it is undisputed that Ortiz
has been transferred to a different complex at WCF, which is
served by an entirely separate dental clinic from the one Dr.
Pearcy practices in. As a result, Dr. Pearcy is no longer
responsible for Ortiz's dental needs, and there is not a
“realistic possibility” that Ortiz will be
subjected to any care-let alone constitutionally inadequate
dental care-by Dr. Pearcy moving forward. See Maddox v.
Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing
Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)).
While it is “theoretically possible” that Ortiz
will be transferred back into the complex served by Dr.
Pearcy, “that possibility is supported only by
speculation and not evidence.” Nelson, 570
F.3d at 882 (citing In re Associated Press, 162 F.3d
503, 511 (7th Cir. 1998)). Therefore, Ortiz's claim for
injunctive relief against Dr. Pearcy is moot. See
id. at 883; see also Fuller v. Dillon, 236 F.3d
876, 883 (7th Cir. 2001) (affirming denial of plaintiff's
request for injunctive relief as moot because he had
“already received the injunctive relief he
requested” when he was no longer housed in the location
that had been subjecting him to forced medication).
even if this claim was not moot, Ortiz's request for
preliminary injunctive relief would be unwarranted. Ortiz
asks the court to order Dr. Pearcy to refrain from treating
him and to refer him to another dentist for a “second
opinion.” ECF 2 at 4. In addition to both of those
issues being resolved by the transfer, the court notes that
“the Constitution is not a medical code that mandates
specific medical treatment.” Snipes v.
DeTella, 95 F.3d 586, 592 (7th Cir. 1996). Inmates are
“not entitled to demand specific care [nor] entitled to
the best care possible.” Forbes v. Edgar, 112
F.3d 262, 267 (7th Cir. 1997). While Ortiz insists that Dr.
Pearcy provided him with inadequate dental care and ignored
his needs, the medical records described above show that
Ortiz was seen and treated by Dr. Pearcy multiple times
during the time period in question. He made repeated efforts,
using different methods and bonding agents, to fill
Ortiz's cavity in tooth number 20 prior to the transfer.
See Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.
2008) (“[M]edical professionals are not required to
provide proper medical treatment to prisoners, but rather
they must provide medical treatment that reflects
professional judgment, practice, or standards.”)
(internal quotation marks and citation omitted).
Additionally, Ortiz was scheduled to see another dentist, Dr.
Wilkinson, at a different dental clinic following the
transfer, but he refused treatment and has provided no
legitimate reason for doing so. Based on this record, it is
Ortiz himself who is standing in the way of further dental
care, not the prison medical staff. Thus, even if it was
still viable, Ortiz has failed to show a likelihood of
success on the merits of his claim for preliminary injunctive
these reasons, the court:
DENIES the request for preliminary injunctive relief
contained within Valentin Ortiz, Jr.'s complaint (ECF 2);
DISMISSES AS MOOT Valentin Ortiz, Jr.'s claim for
permanent injunctive relief against Dr. Pearcy.