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Counts v. Hollingsworth

September 24, 2010

SAMUEL J. COUNTS, #18923-045, PLAINTIFF,
v.
LISA HOLLINGSWORTH, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Samuel J. Counts, an inmate in USP-Marion, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

FACTS ALLEGED

Counts entered federal custody in January 2007. During his intake screening in early February at Forrest city, Arkansas, Counts advised the dentist that he had a full upper denture at home, and he received permission to have the dentures mailed to him. When his family was unable to find his dentures, Counts returned to the dentist in March 2007; he was added to the routine dental care list ("RDCL") to be fitted for new dentures, and he was told the average wait time was 9-12 months. In May 2007 Counts was transferred to Marion, and he immediately sought a dental appointment. He anticipated a shorter wait for dentures due to the smaller population at Marion, so he was dismayed to learn that it was still a 9-12 month wait for dentures.

During that year, Counts's family eventually located and mailed his dentures from home. Unfortunately the dentist determined that the dentures were too far out of alignment to be adjusted, but Counts was able to make use of them when necessary for hard or sharp foods. Thus, Counts remained on the Marion RDCL with his original 9-12 month waiting period for new dentures. In late 2007, Counts learned that there was no longer a full-time dentist at Marion. He spoke with Defendants Chastain and Clendinin, who advised him that a contract dentist would be coming to Marion. At that time, Clendinin verified that Counts was #108 on the RDCL.

In February 2008 Counts was placed in segregation, and his personal property was packed. Upon his release from segregation In March 2008, Counts discovered that his ill-fitting dentures were not in his property box. Counts explained his dental situation to the unit manager, who noted that Counts had been on the RDCL for about 10 months. Given the 9-12 month waiting period originally predicted, the unit manager advised Counts to be patient.

In mid-2008, Counts spoke many times with Defendants Hollingsworth, English, Clendinin and Chastain about the delays in getting his dentures. He was told that at certain times there was no dentist available, and later he was told that a new dentist had been hired. In July 2009, Counts was told that the dental department was working on "the 50s" on the RDCL. In November, Clendinin told him that an additional contract dentist had been hired. In December 2009, Clendinin told him that the institution-based RDCL had been abandoned. Instead, the relevant date was an inmate's original date of placement on an RDCL, regardless of the institution. They were currently working on inmates who had been placed on the list in March 2007. Counts was able to prove that he was placed on the RDCL at Forrest City on March 13, 2007, and Clendidin advised him that his position on the list had been moved up.

On March 9, 2010, Counts saw the dentist for small cuts, bruising and abrasions in his mouth caused by sharp foods. The dentist advised Counts that given the time constraints, the dentist could only treat his symptoms but could not do anything at that time about his dentures; Counts would have to wait, like everyone else, for his turn to come up on the RDCL. The dentist also explained that time spent addressing the dental sick call list necessarily cut into ...


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