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McCue v. Aldridge

February 22, 2006

RICHARD F. MCCUE, INMATE #N46136, PLAINTIFF,
v.
STEVE ALDRIDGE, WILLARD ELYEA, AND TERRY CALIPER, DEFENDANTS.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Tamms Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted leave to proceed in forma pauperis, and he has tendered his initial partial filing fee as ordered.

Outstanding Motion

Now pending before the Court is Plaintiff's motion to correct the complaint (Doc. 7). Under the local rules, Amended pleadings and supplemental pleadings shall contain all allegations which a party intends to pursue. All new material in the amended pleadings shall be underlined. The original of the amended pleading shall be attached to the motion to amend the pleading so that it may be filed if the motion to amend is granted.

Local Rule 15.1; see FED.R.CIV.P. 15. Plaintiff did not include with his motion a copy of the corrected complaint to be filed if the motion is granted. Normally, this would be grounds for denying the motion to amend or correct. However, in this instance, Plaintiff indicates that in paragraph eleven of the statement of claim, he incorrectly stated the date of the incident discussed in that paragraph. He asks that the Court correct the date from "5/5/05" to "5/5/04." This is a minor error and Plaintiff does not seek to make additional or more elaborate changes to his complaint. Accordingly, the motion to correct the complaint (Doc. 7) is GRANTED. All parties are put on notice that the date of the events described in paragraph eleven of the "statement of claim" section of the complaint is "5/5/04."

Threshold Review

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds that none of the claims in the complaint may be dismissed at this point in the litigation.

Factual Allegations

Plaintiff states that on April 5, 2004, Defendant Aldridge, a dentist, determined that Plaintiff would need a new upper denture because Plaintiff's current one was cracked. Plaintiff states that the crack was a result of normal wear, not negligence. Defendant Aldridge told Plaintiff that he would have to prepay the full cost of the denture before it would be replaced. The next day, Plaintiff spoke to Tamms Medical Director, Dr. Powers (not a defendant), who told Plaintiff he should not have to pay for the denture, but that he should contact defendant Terry Caliper, Tamms Health Care Administrator, before he filed a grievance on the matter. On April 15, Plaintiff spoke to Defendant Caliper who told him she would speak to defendant Aldridge about payment. Plaintiff states that on April 21, his denture broke into two pieces, making it totally unusable. On April 23, he told Defendant Caliper about the fractured denture, and offered to pay for the repair if necessary. Defendant Caliper told Plaintiff she had spoken to Dr. Powers and Plaintiff would not have to pay for the new denture. On April 27, Dr. Powers also assured him he would not have to pay.

On April 28, 2004, Dr. Aldridge took an impression for a new denture on the top teeth but "disobeyed Dr. Powers lawful order to furnish Plaintiff with a new denture without any payment." When Plaintiff saw Dr. Aldridge again on May 5, Plaintiff told him that Dr. Powers and Defendant Caliper had told him he did not have to pay for the denture. Dr. Aldridge told him that if he did not prepay for the denture, then he would "have to do without a denture and treatment for his injured upper gum." Plaintiff did not pay for the denture. Plaintiff states that as a result of not having the denture, his top gum was sore, ...


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