Foy v. Bantry Group et al
Filing
5
MERIT REVIEW OPINION - Rule 16 Deadline 7/31/2015. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 6/1/2015. (GL, ilcd)
E-FILED
Monday, 01 June, 2015 01:55:27 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
FASHONNUS FOY,
Plaintiff,
v.
BANTRY GROUP, d/b/a
WEXFORD HEALTH SOURCES,
INC., ANDREW TILDEN, M.D.,
And TERRY ARROYO,
Defendants.
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15-CV-1020
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Plaintiff, proceeding pro se and incarcerated in Pontiac
Correctional Center, seeks leave to proceed in forma pauperis. The
case is before the Court for a merit review pursuant to 28 U.S.C. §
1915A. In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
Plaintiff alleges that, in July of 2014, he requested another set
of impressions for dentures because his prior set of dentures had
been damaged. The request was approved by Wexford Health
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Sources, Inc., but on the condition that Plaintiff pay the “lab cost.”
Plaintiff does not say how much the lab cost is or whether he has
money in his account to pay the cost.1 He alleges that Wexford
Health Sources, Inc., is required to provide one free set of
impressions to inmates every five years. He alleges that, without
his dentures, he is experiencing “an inability to properly chew” and
“severe painful cuts to gums; severe stomach cramps; constipation;
severe pain passing hard stool.” (Complaint, pp. 7-8.)
The need for dentures can be a serious need. Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001)(dental care is one of
the most important medical needs of inmates.”)(inmate’s allegations
that he could not chew without his dentures and suffered bleeding,
headaches, and disfigurement stated claim). However, the
Constitution does not forbid requiring an inmate to share in the
costs of treatment if the inmate has the ability to share in that cost.
That Wexford may be contractually obligated to provide free
impressions at certain intervals does not mean that Wexford is
constitutionally obligated to so.
1
Alvarado v. IDOC, et al., 2014 WL 3725336 (S.D. Ill)(not published in F.Supp.), involves similar allegations.
According to the Complaint in Alvarado, the lab fee is $250 for inmates who enter IDOC without dentures.
Plaintiff’s trust fund ledger filed in this case indicates that he receives a monthly payroll amount of about $30.00
and that he received gifts from a relative totaling about $180.00 from July to October of 2014.
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At this point the Court will interpret Plaintiff’s allegations
liberally: Plaintiff is unable to pay the lab cost, and, because of that
inability to pay, is unable to have his serious dental needs met.
These allegations state a plausible Eighth Amendment claim for
deliberate indifference to Plaintiff’s serious dental needs. All three
Defendants are alleged to have participated in enforcing the
payment policy, so all three Defendants remain in the case for now.
The claim against Dr. Tilden is construed against him in an
individual and official capacity, to the extent Plaintiff seeks
injunctive relief.
Plaintiff’s claims under the Americans with Disabilities Act
and Rehabilitation Act will be dismissed. These Acts cover
disability discrimination, not the failure to provide proper medical
care. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.
1996)(Americans with Disabilities Act “would not be violated by a
prison’s simply failing to attend to the medical needs of its disabled
prisoners.”). Additionally, Plaintiff’s conclusory allegations of
“failure to train or supervise” do not state a claim. According to
Plaintiff’s own allegations, the reason he does not have dentures is
the payment policy, not a failure to train or supervise.
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IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim for deliberate indifference to his serious need for
dentures. This case proceeds solely on the claims identified in this
paragraph. Any additional claims shall not be included in the
case, except at the Court’s discretion on motion by a party for good
cause shown or pursuant to Federal Rule of Civil Procedure 15.
2)
Plaintiff’s claims under the Americans with Disabilities
Act and Rehabilitation Act are dismissed.
3)
Plaintiff’s claims for the failure to train or supervise are
dismissed.
4)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
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5)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
6)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
7)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
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answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
8)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
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9)
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
10)
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
11)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
12)
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
13)
The clerk is directed to attempt service on
Defendants pursuant to the standard procedures.
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14)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: June 1, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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