The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge David R. Herndon pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for Summary Judgment (Doc. 32), filed by Defendant Steve Aldridge on January 10, 2007, and the Motion for Summary Judgment (Doc. 37), filed by Defendants Terry Caliper and Willard Elyea on February 8, 2007. For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment (Doc. 32) be DENIED, that the Motion for Summary Judgment (Doc. 37) be DENIED, and that the Court adopt the following findings of fact and conclusions of law:
Richard McCue ("Plaintiff"), an inmate in the Tamms Correctional Center, filed this civil action on August 5, 2005, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff alleges that Defendants Dr. Steve Aldridge, Dr. Willard Elyea, and Nurse Terry Caliper were deliberately indifferent to his serious medical needs, and that each of these defendants retaliated against him for filing grievances regarding his treatment. Defendant Aldridge filed a motion for summary judgment on January 10, 2007, and Defendants Caliper and Elyea filed a joint motion for summary judgment on February 8, 2007. Plaintiff filed responses to both motions.
On April 5, 2004, Plaintiff saw Defendant Aldridge, a dentist at the Tamms Correctional Center, and complained about a broken upper denture (Doc. 32 at ¶ 1; Doc. 1-3 at 12). Plaintiff claims that during this visit Defendant Aldridge informed him that he needed a new upper denture and that he would have to pay the full lab cost to get the denture repaired or replaced (Doc. 1 ¶3; Doc. 1-2 at 1). Defendant Aldridge asserts that he told Plaintiff that his dentures could be repaired, but that Plaintiff preferred to have a new set made (Doc. 32 at ¶ 2). Both parties agree that Dr. Aldridge informed Plaintiff that he would have to sign a money voucher and pay a lab fee of seventy-one dollars in order to obtain a new set of dentures (Doc. 32 at ¶5; Doc. 47 at ¶6). Plaintiff claims that he explained to Dr. Aldridge that his denture was approximately fifteen years old and was repaired approximately eight years ago, but had again broken through the normal course of use (Doc. 1-2 at 1). Plaintiff states that rather than further argue about the payment issue, he agreed with Defendant Aldridge that he needed a new denture and Defendant Aldridge said he would set up another appointment to take the impressions (Doc. 1-2 at 2).
On April 6, 2004, Plaintiff spoke to Dr. Powers and complained about having to pay for the denture (Doc. 1-2 at 2). Plaintiff claims that Dr. Powers told him that he did not understand why Plaintiff would have to pay for the denture, and that he should contact Defendant Caliper before filing a grievance about it (Doc. 1-2 at 2).
Also on April 6, 2004, Plaintiff sent a resident request to Defendant Caliper, who is a nurse and health care administrator at Tamms, requesting to speak with her regarding his dental problems (Doc. 1-5 at 1). He informed Defendant Caliper that Dr. Powers had told him he should speak with her because Defendant Aldridge had told him he would have to pay a large lab fee to get his dentures repaired or replaced (Doc. 1-5 at 1). The request was stamped received and reviewed on April 7, 2004, and stated, "Will see on rounds." (Doc. 1-5 at 1). A remark was later written on the form, dated April 12, 2004, stating, "Already on dental line for April 28, 2004." (Doc. 1-5 at 1).
Plaintiff states that on April 15, 2004, he spoke with Defendant Caliper who told him she would speak to Dr. Aldridge about the matter (Doc. 1-2 at 2). Plaintiff alleges that on April 21, 2004, his denture fractured down the middle into two pieces while he was trying to eat with it, making it totally unusable (Doc. 1 at ¶ 7). On April 23, 2004, Plaintiff states that he spoke to Defendant Caliper again, showing her the fractured denture, and was told that after speaking with Dr. Powers about the issue, Plaintiff would not have to pay for the replacement of his dentures (Doc. 1-2 at 2). Plaintiff also states that on April 27, 2004, Plaintiff showed Dr. Powers the broken denture and that Dr. Powers confirmed that he had spoken with Defendant Caliper, telling Plaintiff not to worry as Defendant Caliper had taken care of the matter (Doc. 1-2 at 2).
On April 28, 2004, Defendant Aldridge took the top impression of Plaintiff's gum tissue (Doc. 1-3 at 12; Doc. 1-2 at 2). After he took the upper impression, Defendant Aldridge asked Plaintiff to sign a voucher payable to Wexford Health Services for approximately seventy-one dollars. Plaintiff states that after he explained to Defendant Aldridge that both Dr. Powers and Defendant Caliper had informed him that the IDOC would pay for the denture, but Defendant Aldridge told him that he worked for Wexford, not the IDOC, and it was his policy to charge prisoners for all denture replacements or repairs (Doc. 1-2 at 2). Plaintiff also states Defendant Aldridge told him that since he had talked to Dr. Powers and Defendant Caliper about this issue and they told Plaintiff not to worry, that they should finish the procedure (Doc. 1-2 at 2).
Also on April 28, 2004, Plaintiff sent two resident requests, one to Dr. Powers and the other to Defendant Caliper (Doc. 47 at 10; Doc. 1-5 at 3). In the request to Dr. Powers, Plaintiff reported on his dental visit and asked if Dr. Aldridge was double billing by charging the IDOC and the prisoners for dentures and whether he needed to file a grievance about the matter (Doc. 47 at 10). There was a response to this resident request which stated, "I met with Dr. Aldridge earlier this week and the denture will be forthcoming. Since the broken denture is approximately fifteen years old the inmate should not be charged." (Doc. 47 at 10).
In the resident request sent to Defendant Caliper, Plaintiff informed her that Defendant Aldridge told him he had to pay the seventy-one dollars and that, after Plaintiff explained to Defendant Aldridge that she and Dr. Powers stated he should not have to pay, he said, "Well then perhaps Ms. Caliper and Dr. Powers should finish the procedure." (Doc. 1-5 at 3). Plaintiff then stated that he did not want any problems, but wanted to know if he needed to file a grievance (Doc. 1-5 at 3). There was no response noted on the resident request.
On May 1, 2004, Plaintiff filed a formal written grievance detailing the facts above, and requesting (1) that Defendant Aldridge be investigated for over charging the IDOC and prisoners, (2) that the state pay for his denture, and (3) that he not be retaliated against for filing the grievance (Doc. 1-2 at 1). This grievance notes a response made on May 4, 2004, in which Ms. Caliper states that Dr. Powers, the Medical Director, discussed the issue with Defendant Aldridge and that Defendant Aldridge had agreed to provide Plaintiff with dentures and only charge the $2 co-payment for a non-emergency dental appointment (Doc. 1-2 at 1). The grievance was denied with the reasoning that "the issue appears resolved." (Doc. 1-2 at 3).
When Plaintiff saw Defendant Aldridge for a biannual exam on May 5, 2004, however, Plaintiff states that Defendant Aldridge told Plaintiff that he was aware of what Defendant Caliper and Dr. Powers had said, but that he worked for Wexford, not the IDOC, and that if Plaintiff did not prepay for his denture then he would have to do without a denture and treatment for his upper gum (Doc. 1 at ¶ 11). Plaintiff claims that he refused to sign the payment voucher after telling Defendant Aldridge that due to his denture becoming totally unusable, he was grinding his bottom teeth during his sleep into his upper gums, causing his gums to become painfully sore, swell, and bleed (Doc. 1 at ¶ 11). Plaintiff states that he requested a rubber mouth guard and a soft diet but was refused (Doc. 1 at ¶ 11). Defendant Aldridge admits that because Plaintiff would not sign the voucher, he was not scheduled to be seen again to complete the process of obtaining dentures (Doc. 32 at ¶ 7).
On May 30, 2004, Plaintiff wrote a letter to the Comptroller of Illinois, Daniel Hynes, alleging that Defendant Aldridge and Wexford Health Services were illegally double billing the IDOC and inmates for dental procedures and requesting an investigation (Doc. 1-4 at 1). On June 4, 2004, the Office of the Comptroller responded, informing Plaintiff that they were forwarding his letter to the Department of Professional Regulation and to the IDOC (Doc. 1-4 at 2). Plaintiff alleges that it was shortly after his letter was forwarded to the IDOC that the retaliation began (Doc.1 at ¶ 12).
On June 1, 2004, Plaintiff wrote the prison warden, Mr. Shelton Frey, stating that he was writing him per his request following their conversation on May 31, 2004, where, after Plaintiff showed him the grievance he had filed on May 1, 2004, Warden Frey told him he would look into it as soon as possible (Doc. 1-5 at 4). There was a Post-It note dated June 16, 2004, attached to this resident request, asking Defendant Caliper the "status on this?" (Doc. 1-5 at 4). On June 21, 2004, Defendant Caliper sent an e-mail response to Warden Frey stating that she had spoken with Dr. Powers that same day and it is their opinion that Plaintiff has had his dentures long enough with numerous repairs such that he should be provided with a new one at no cost to Plaintiff (Doc. 1-5 at 5). Defendant Caliper further states that Dr. Powers told Defendant Aldridge to proceed with making the denture at no charge to Plaintiff (Doc. 1-5 at 5).
On July 1, 2004, a series of e-mail exchanges between Defendants Caliper and Defendant Elyea occurred about Plaintiff's allegations, all with the subject line "Allegations- Offender Richard McCue N46136." (Doc. 1-5 at 6). The first e-mail, sent at 9:19 a.m. by Defendant Elyea, stated as follows:
Concerning the above issue, I spoke directly with Dr. Aldridge, the dentist at Tamms CC. Dr. Aldridge assures me that he followed the A.D. when dealing with the offender's dental problem. The offender will be provided with a repaired or replaced denture if and when the offender signs his voucher for payment. This process is in accordance with the A.D. The offender would not have to pay for the dentures if this were the first one he received from IDOC or if he required additional specific teeth removed while in IDOC. Thanks. (Doc. 1-5 at 6)
The next e-mail was a reply sent from Defendant Caliper to Defendant Elyea at 10:07 a.m., stating:
Dr. Elyea, An update concerning McCue's dental issue..Dr. Powers reviewed this incident and found Inmate McCue's denture was 17 years old with numerous repairs documented. Dr. Powers feels that McCue should be provided a new denture without charge to the inmate and has advised Dr. Aldridge to provide him with one..Terry (Doc. 1-5 at 6)
The final e-mail is a response from Defendant Elyea back to Defendant Caliper, sent at 10:12 a.m., which states:
That's not what the A.D. says. If the state provided him with the original denture then all subsequent repairs/replacements are charged to the offender unless IDOC removes more teeth and an entirely new denture is needed. Once you pay for one, you place the entire department in a precarious position. Thanks. (Doc. 1-5 at 6).
On the same day of this e-mail exchange, July 1, 2004, Defendant Caliper sent a memorandum to Plaintiff stating, "Dr. Powers has been informed that you must pay for all denture replacement/repairs according to Administrative Directive 04.03.102 Dental Care for Offenders. If you wish to proceed with obtaining a denture please let me know." (Doc. 1-3 at 10).
On July 21, 2004, Plaintiff was again seen by Defendant Aldridge (Doc. 1-3 at 12). Plaintiff claims that he showed Defendant Aldridge a copy of the counselor's response to his May 1, 2004 Grievance, which stated that he was to receive the dentures and only be charged a two-dollar co-payment (Doc. 1-3 at 12). Plaintiff states that Dr. Aldridge responded by stating that he did not care about the counselor's response because now he would have to pay for writing to Comptroller Hynes (Doc. 1 at ¶ 13).
On July 21, 2004, Defendant Caliper wrote a memorandum to Plaintiff after Plaintiff sent a request to an assistant warden requesting a copy of Administrative Directive 04.03.102 Dental Care for Offenders (Doc. 1-3 at 11). Defendant Caliper explained that although the Health Care Unit does not allow inmates to inspect the directives, "the AD that applies to your issue [states] '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, DC 828, authorizing the deduction of the payment from present or future funds in his trust fund account. The time frame for replacement shall be according to priority and availability as determined by the dentist.' ". (Doc. 1-3 at 11). The letter further stated that "As both Dr. Powers and myself have told you, Dr. Elyea, IDOC Medical Director, has reviewed your dental issue and determined that Dr. Aldridge is following IDOC procedure in that if you sign the voucher for payment, you will be provided with a denture." (Doc. 1-3 at 11).
In a grievance dated July 22, 2004, Plaintiff complained again that on July 21, 2004, Defendant Aldridge refused to treat him unless he signed the voucher despite showing him the counselor's response on his May 1, 2004 grievance (Doc. 1-2 at 4). Plaintiff also alleged that Defendant Elyea overruled Dr. Power's decision in order to take revenge against him for writing to the Comptroller Hynes outlining Defendant Aldridge's illegal activity (Doc. 1-2 at 5). While he raised the possibility that Defendant Elyea may have mistakenly overruled Dr. Powers because he is not on site like Dr. Powers is, he also stated that there was absolutely no negligence on his part and there had been no showing that he was negligent; therefore, he argued, AD 04.03.102 did not apply to him (Doc. 1-2 at 5). Plaintiff also pointed out that a memo addressed to all inmates from Defendant Caliper, dated November 13, 2000, states that all inmates "shall have a $2 fee-for-service charge assessed for all non-emergency medical and dental services," and that "Medical and dental care shall not be denied based upon an inmate's inability to pay. If an inmate is without funds, a $2 fee-for-service charge shall be assessed against any future funds." (Doc. 1-3 at 9). The memo also states that no fee shall be assessed for required or emergency medial or dental services (Doc. 1-3 at 9).
On July 28, 2004, a response to the grievance was provided in which Defendant Caliper states that Dr. Aldridge will not provide Plaintiff a denture until he signs the voucher for payment (Doc. 1-2 at 4). Defendant Caliper also stated:
Inmate McCue may contact the Department of Professional Regulation, the state comptroller's office or any state agency that he elects. Dr. Aldridge is following Administrative Directive 04.03.102 Dental Care for Offenders and there is 'no illegal activity' as Inmate McCue alleges. Dr. Elyea, IDOC Medical Director, did not 'mistakenly overrule Dr. Powers'. Dr. Elyea reminded Dr. Powers and myself of the wording of the directive and we acknowledged that Inmate McCue's replacement denture had been inadvertently approved. As I have told Mr. McCue when I have made rounds on his living unit, my advice is to accept the decision and sign the voucher if he wants the replacement denture. (Doc. 1-2 at 4).
On August 8, 2004, Plaintiff sent a request to Defendant Caliper advising her that based on her response to his grievance, he would sign the voucher for prepayment of the denture "being that I have no choice in the matter." (Doc. 1-5 at 11). Handwritten on the request it states, "Scheduled dental appt for Sept 29, 2004 8/9/04." (Doc. 1-5 at 11). On August 11, 2004, Plaintiff again sent a resident request to Defendant Caliper requesting to be seen by the dentist as soon as possible, agreeing to sign the money voucher because he needed treatment badly (Doc. 1-4 at 3). Plaintiff also sent another resident request that same day addressed to "Dentist" agreeing to sign the money voucher and requesting to be seen as soon as possible to get his denture replaced or repaired as he reported having gone without a denture for four months (Doc. 1-4 at 4).
On September 1, 2004, Plaintiff again sent a resident request to Defendant Aldridge stating, "I've repeatedly asked to see you and said I'd sign the money voucher for the denture. What's the holdup? You know I haven't had an upper denture since April and my bottom teeth cut into my top gum while I sleep. My gum stays sore, swollen, & bleeds. I need a denture / rubber mouth guard ASAP. I'll pay, please reply!" (Doc. 1-4 at 5). There is no evidence that Plaintiff's request was ever responded to as the portion of the request form for remarks by staff members was left blank (Doc. 1-4 at 5). Defendant Aldridge alleges in his motion for summary judgment that he is not personally involved in scheduling inmates for their dental visits (Doc. 32 at ¶ 10). Plaintiff disputes this allegation, citing both Defendant Aldridge's handwritten and signed dental records (Doc. 1-3 at 12).
On October 20, 2004, Inmate Corey L. Fox, K95803, executed an affidavit stating that while he was housed in a cell close to Plaintiff's cell, he witnessed, on numerous occasions, Plaintiff complaining to the nursing staff as they made their rounds and requesting to be seen by the dentist about his gums being swollen and bleeding due to his broken denture (Doc. 1-4 at 6). According to Inmate Fox, Plaintiff complained also about his inability to eat and digest his food to the nurses, including Defendant Caliper, but was told by Defendant Caliper that she had scheduled him to be seen by Defendant Aldridge back in August 2004, and that is all she could do in this situation, admitting she did not know the reason for the delay (Doc. 1-4 at 6). Inmate Fox also states that on his way to the yard, he observed Plaintiff standing at his door, where he recognized that Plaintiff's entire upper mouth was enlarged, swollen, and bloated (Doc. 1-4 at 6). Inmate Fox also states that when Plaintiff exposed his upper gums, he noticed severe swelling, redness, and infectious bleeding (Doc. 1-4 at 6). Inmate Fox also asserts that Plaintiff showed him a set of upper dentures that were broken down the center in two pieces (Doc. 1-4 at 6).
On November 8, 2004, Plaintiff saw Defendant Aldridge for the first time since July 21, 2004, and requested treatment for his upper gums (Doc. 1 at ¶15; Doc. 1-3 at 12). Defendant Aldridge allegedly told Plaintiff that if he did not sign the voucher he would have to do without a denture (Doc. 1-2 at 10). Plaintiff alleges that after he signed the voucher, Defendant Aldridge still refused to treat him until after there was a check made out to Wexford (Doc. 1-2 at 10). Defendant Aldridge dated and signed an entry in Plaintiff's dental record noting that Plaintiff now wants to pay the lab fee, that the fee had gone up, that Plaintiff did sign the voucher, and that a visit was to be scheduled to take impressions after it is verified that Plaintiff has enough money to pay the lab fee (Doc. 1-3 at 12). Plaintiff alleges that the denial of treatment until Plaintiff pays for it in advance is illegal and clearly shows a conspiracy among the defendants to delay or deny plaintiff proper dental care (Doc. 1 at ¶15).
On November 12, 2004, Plaintiff filed a grievance stating what happened at the November 8, 2004, visit to Defendant Aldridge, alleging again that the denture did not break because of his negligence, and advising of a possible civil court action (Doc. 1-2 at 10). On November 15, 2004, a response was filed in which Defendant Caliper stated Defendant Aldridge would not receive a replacement prosthetic until Plaintiff paid for it, that this position was "just not pulled out of the air" but consistent with Administrative Directive 04.03.102 Dental Care for Offenders (Doc. 1-2 at 10). Defendant Caliper again cited the directive, which states that '[o]ffenders who have lost or broken a dental prosthetic through negligence shall be required to pay the dental laboratory fee for replacement." (Doc. 1-2 at 10). Defendant Caliper also stated that Defendant Elyea, as IDOC Medical Director, was consulted regarding this issue and he advised that the procedure must be followed (Doc. 1-2 at 10). The grievance was denied at all levels. Defendant Aldridge, however, admits that he does not know if it was Plaintiff's negligence that caused the denture to break (Doc. 37-3 at 10).
On December 27, 2004, Plaintiff next visited Defendant Aldridge, who resumed taking impressions of Plaintiff's mouth (Doc. 1-3 at 12; Doc. 1 at ¶ 16).
Plaintiff claims that on February 7, 2005, Nurse Lynn Stokes told him that although he had put in a request for sick call regarding his gums, Defendant Caliper had ordered that Plaintiff was not to be seen (Doc. 1-2 at 14; Doc. 1 at ¶ 17). Plaintiff also produced an affidavit from fellow Inmate Bennie Cunningham, dated February 20, 2007, where he states that on February 7, 2005, he overheard Nurse Lynn Stokes tell Plaintiff that Defendant Caliper would not allow him to be seen at sick call concerning his gums (Doc. 1-4 at 8). Inmate Cunningham also states that he overheard this same statement from Nurse Grace Hart on February 7, 2005 (Doc. 1-4 at 8). Inmate Cunningham further states that on February 8, 2005, he overheard Kristin Kwasniewski tell Plaintiff that there was nothing she could do because she had spoken with Defendant Caliper on the phone and was told that Plaintiff will not be called to sick call about his gums (Doc. 1-4 at 8).
Plaintiff filed a grievance on February 7, 2005, detailing his conversation with Nurse Stokes, alleging that Defendant Caliper refuses to let him be seen at sick call, and requesting he be seen by the doctor, be put on a soft diet, and be given medication for constipation (Doc. 1-2 at 14). Defendant Caliper indicates in the response to the grievance, dated February 14, 2005, that "Dr. Aldridge has been consulted and did not see a clinical indication to order Mr. McCue a special diet . . . In terms of his request to be seen by the physician for "gums" he has received an over-the counter preparation, Oragel." (Doc. 1-2 at 14). Plaintiff states that he saw a Dr. Chhabra after he filed his grievance, but only because he caught him doing a night round -- not because he was granted sick call (Doc. 1 at ¶ 18). The grievance was denied.
On February 9, 2005, Plaintiff filed another grievance, stating that he asked Nurse K. Ksasniewski to go to sick call for his bleeding gums but was again refused (Doc. 1-3 at 1). Plaintiff states that Ms. Ksasniewski called Defendant Caliper and then told Plaintiff that she could not help him because Defendant Caliper refused to let him be seen at sick call (Doc. 1-3 at 1). Plaintiff then states in the grievance that "I've heard from staff members that Ms. Caliper's reasoning for denying me this necessary medical treatment for my gums etc. is so that it won't be documented for any future Civil Action against her and Dr. S. Aldridge for denying me a denture for the past ten months." (Doc. 1-3 at 1). He then requested to be seen by a doctor for his bleeding gums (Doc. 1-3 at 1).
Although Plaintiff's grievance was denied, Defendant Caliper submitted a written response to Plaintiff's request stating:
I deny the allegation. My only role in processing inmate request for medical services is to review the request, note the date it was received and refer to the nursing staff for screening. I received a request from McCue on 2/7/05. It was referred to the 3011 shift and the nurse screening the request did not see a clinical indication to schedule him for further evaluation. I also deny the allegation that staff members have told him that my reason for preventing him from receiving medical treatment is "that it won't be documented for any future civil action." I have no concerns about how many future civil actions Mr. McCue files that may ...