Foy v. Bantry Group et al
OPINION: Defendants Andrew Tilden, M.D., and Wexford Health Sources, Inc.'s Motion for Summary Judgment Is GRANTED 41 . Defendant Terry (Teresa) Arroyo's Motion for Summary Judgment is GRANTED 43 . The clerk of the court is directed to enter judgment in favor of Defendants and against Plaintiff. This case is closed. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 9/19/2016. (GL, ilcd)
Monday, 19 September, 2016 02:52:36 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
BANTRY GROUP, d/b/a
WEXFORD HEALTH SOURCES, INC.,
ANDREW TILDEN, M.D.,
And TERRY ARROYO
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Defendants Andrew Tilden, M.D. (“Tilden”) and Wexford Health
Sources, Inc. (“Wexford”) filed a Motion for Summary Judgment on
April 1, 2016. Defendant Terry (Teresa) Arroyo (“Arroyo”) filed a
Motion for Summary Judgment on April 14, 2016. Plaintiff,
proceeding pro se, filed Responses to Defendant Wexford and
Tilden’s Motion for Summary Judgment on July 5, 2016, and to
Defendant Arroyo’s Motion on August 16, 2016. Defendants
Wexford and Tilden filed a Reply to Plaintiff’s Response on July 18,
2016. For the reasons stated below, Defendants’ Motions for
Summary Judgment are GRANTED.
Page 1 of 11
Plaintiff is an inmate incarcerated in the Illinois Department of
Corrections (“IDOC”) at the Pontiac Correctional Center (“Pontiac”).
(Doc. 41-1, p. 6-7). Wexford Health Sources is the contractual
provider of health care to inmates housed at Pontiac. (Doc. 1, p. 1).
On December 1, 2010, Plaintiff received and acknowledged his
receipt of a set of partial dentures from the IDOC while incarcerated
at Pontiac. (Doc. 41-1, p. 41-44). The receipt signed by Plaintiff
contained the following language: “If a remake is necessary due to
the offender’s neglect the offender shall be charged the current
laboratory fee for this service.” Id. On October 23, 2013, Plaintiff
dropped his dentures into the toilet and was unable to retrieve
them. (Doc. 41-1, p. 31).
Plaintiff requested replacement dentures on October 23, 2013
and again on July 9, 2014. (Doc. 33-2, p. 2,3). On October 29,
2013, Dr. Mitchell, the dentist at Pontiac, informed Plaintiff of the
$260 lab cost that would be required to replace dentures unless
Plaintiff was found to be indigent. (Doc. 41-13, p. 2). Between
February 23 and February 26, 2014, Plaintiff received $511.05 in
gifts from family and friends. (Doc. 41-15, p. 1). In February and
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March of 2014, Plaintiff spent $369.47 on items through the
On September 23, 2014, Plaintiff filed an offender’s grievance
complaining about Wexford Health Sources’ policy “requiring
inmates to pay or [agree] to pay lab cost in full before receiving a
second set of [dentures].” (Doc. 1, p. 17). On October 8, 2014,
Plaintiff was notified in writing that he was approved for a new set
of dentures but he would be required pay the $260.00 lab fee. (Doc.
1, p. 16).
On October 8, 2014, Plaintiff had only $39.59 in his trust fund
account. However, between that date and March 27, 2015, Plaintiff
received monetary gifts totaling $672.71. (Doc. 41-15, p. 2-4). In the
same time period, Plaintiff earned $190.08 in payroll for work done
at Pontiac. Id.
Defendant Wexford’s “Removable Prosthetics” policy indicates
that “partial dentures will not be made more frequently than every
five (5) years and only when clinically necessary.” (Doc. 50, p. 62).
However, Wexford’s policy does not address what actions will be
taken to replace dentures that have been lost or damaged. Id. An
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IDOC policy, effective as of September 1, 2002, does address
replacing lost or damaged dentures. (Doc. 41-14, p. 10).
Offenders who have lost or broken a dental prosthetic
through negligence shall be required to pay the dental
laboratory fee for replacement. The offender shall be
required to sign a Request for Payment, DC828,
authorizing the deduction of the payment from present or
future funds in his or her trust fund account.
Administrative Directive 04.03.102(II)(F)(6)(b) (emphasis added). An
Illinois statute also allows for inmates to be charged for expenses
incurred during their incarceration. 730 ILCS 5/3-7-6(a)
(“Committed persons shall be responsible to reimburse the
Department [of Corrections] for the expenses incurred by their
Although Wexford maintains its own set of policies and
customs, IDOC policies cannot be set aside by Wexford or its
employees. Slater v. Butler, No. 11-752-GPM, 2012 U.S. Dist.
LEXIS 47685 (S.D. Ill. Apr. 4, 2012) (Holding that “Wexford
employees have no authority to waive IDOC statutes [730 ILCS
5/3-6-2(f) and Ill. Admin. Code tit. 20, § 415.30(g)] and regulations
governing the co-pay that non-indigent IDOC prisoners must pay
for non-emergency medical care”).
Page 4 of 11
On January 16, 2015, Plaintiff filed a complaint alleging that
Defendants were deliberately indifferent to Plaintiff’s serious
medical needs by failing to provide him with replacement dentures
after his dentures were lost. (Doc. 1). Defendants Wexford, Tilden,
and Arroyo then filed Motions for Summary Judgment. (Doc. 41,
Summary Judgment Standard
Under Federal Rules of Civil Procedure Rule 56, summary
judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant
bears the initial burden to prove that no genuine dispute as to the
material facts exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Only material facts, which are those “that might affect the
outcome of the suit under the governing law[,] will properly preclude
the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). However, “the mere existence of a
scintilla of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Id., at 252.
Page 5 of 11
“Once the moving party satisfies this burden, the nonmovant
must ‘set forth specific facts showing that there is a genuine issue
for trial.’” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001)
(quoting Fed. R. Civ. P. 56(e)). “The nonmovant must do more,
however, than demonstrate some factual disagreement between the
parties; the issue must be ‘material.’” Logan v. Commercial Union
Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996); see also Newkirk, at 837.
In considering a Motion for Summary Judgment, the Court
will draw all inferences from “facts contained in the affidavits,
attached exhibits, and depositions . . . in the light most favorable to
the party opposing the motion.” United States v. Diebold, Inc., 369
U.S. 654, 655 (1962).
While the Eighth Amendment guarantees that inmates shall
receive necessary medical care, the Eighth Amendment does not
guarantee free medical care. See Martin v. DeBruyn, 880 F. Supp.
610, 615 (N.D. Ind. 1995) aff'd, 116 F.3d 1482 (7th Cir. 1997)(“[the]
principle [‘that the public be required to care for the prisoner, who
cannot by reason of the deprivation of his liberty, care for himself’]
does not forbid a state from requiring that an inmate pay for his
Page 6 of 11
medical treatment to the extent he is able to do so, as he would
have to do were he not deprived of his liberty.” (quoting Estelle v.
Gamble, 429 U.S. at 103-104)); Clark v. Doe, No. 98-2109, 1999
U.S. App. LEXIS 28515, *6 (7th Cir. 1999)(upholding a $1,700.00
medical bill for treatment of an inmate’s fractured eye socket).
Inmates may be charged for medical treatment so long as that
medical treatment is not withheld pending payment. Davis v.
Walker, No. 06-4050, 2006 U.S. Dist. LEXIS 60604, *3 (C.D. Ill.
Aug. 25, 2006). Withholding treatment for want of payment is a
violation of an inmate’s constitutional rights. Moralis v. Flageole,
No. 06 C 2034, 2007 U.S. Dist. LEXIS 72645, *49-50 (C.D. Ill. Sep.
28, 2007) (citing Martin v. DeBruyn, 880 F.Supp. 610, 615
(N.D.Ind. 1995), aff'd, 116 F.3d 1482 (7th Cir. 1997))(“a prison
official who withholds necessary medical care, for want of payment,
from an inmate who could not pay would violate the inmate's
constitutional rights” (emphasis added)).
The policy in place at Pontiac allows for the replacement of
dentures that have been lost or damaged due to the negligence of
an inmate so long as the inmate pays the associated lab cost. See
Administrative Directive 04.03.102(II)(F)(6)(b). The lab cost can be
Page 7 of 11
deducted from present or future funds in an inmate’s trust fund
account. Plaintiff has offered no evidence to suggest that anyone at
Pontiac, much less the officials named in his complaint, indicated
that Plaintiff’s receipt of new dentures would require that he tender
payment before receiving the replacement dentures. In fact, Plaintiff
indicated in his September 23, 2014, grievance that Wexford’s
policy required that an inmate pay or agree to pay before receiving
Plaintiff was told that he would be required to pay for
replacement dentures. Plaintiff may have been unable to pay the
$260 lab fee on October 29, 2013, the day he was first informed
that he would be required to pay to replace his dentures. However,
the record does not indicate his trust fund account balance on that
day. However, if Plaintiff had agreed to pay for the new set of
dentures (as his September 23, 2014, grievance indicates he knew
was an option) and have the cost deducted later, he clearly could
have afforded the lab fee. Four months after Plaintiff was first
informed by Dr. Mitchell that he would need to pay to replace his
dentures, he received $511.05 in gifts from family and friends. In
the six months after October 8, 2014, when Plaintiff was notified in
Page 8 of 11
writing that he was approved for replacement dentures, he received
over $600 in gifts from family and friends.
Plaintiff could have afforded to pay the lab fee associated with
replacing his dentures. In fact, in the two months after Plaintiff was
notified in writing that he was approved for replacement dentures,
he spent $196.97 on items purchased through the commissary.
Plaintiff indicated in his deposition he merely objected to being
required to pay to replace his dentures. (Doc. 41-1, p. 35).
This policy of charging inmates for replacing dentures is
constitutional. See Reynolds v. Wagner, 128 F.3d 166, 175 (3d Cir.
1997) (“The deliberate indifference standard of Estelle does not
guarantee prisoners the right to be entirely free from the cost
considerations that figure in the medical-care decisions made by
most non-prisoners in our society”). Therefore, Plaintiff’s claim that
he was denied dentures because he could not pay for them is not
supported by evidence, and his claim challenging the denture
replacement policy fails as a matter of law.
Plaintiff’s arguments regarding Dr. Mitchell’s alleged lack of
dental care and Plaintiff’s requests to be sent to the UIC Medical
Center for dental care are not relevant to the claims in this case.
Page 9 of 11
Dr. Mitchell is not a Defendant in this case. The claim in this case
is about the replacement of Plaintiff’s dentures.
For the foregoing reasons, Defendants have shown that no
genuine dispute as to the material facts of this case is present.
Therefore, Defendants Wexford, Tilden, and Arroyo are entitled to
judgment as a matter of law.
IT IS THEREFORE ORDERED:
(1) Defendants Andrew Tilden, M.D., and Wexford Health
Sources, Inc.’s Motion for Summary Judgment Is GRANTED (41).
(2) Defendant Terry (Teresa) Arroyo’s Motion for Summary
Judgment is GRANTED (43).
(3) The clerk of the court is directed to enter judgment in favor
of Defendants and against Plaintiff. This case is closed.
(4) Defendants may file a motion for costs within the time
allotted by local rule. If Plaintiff objects to the assessment of costs
against him on the grounds of indigency, he must attach his trust
fund ledgers for the past 12 months to those objections.
(5) If Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the entry of
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judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in
forma pauperis should identify the issues Plaintiff will present on
appeal. See Fed. R. App. P. 24(a)(1)(c). If Plaintiff does choose to
appeal, he will be liable for the $505.00 appellate filing fee
regardless of the outcome of the appeal.
ENTER: September 19, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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