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Richard Smego v. Carol Adams et al

December 3, 2010

RICHARD SMEGO, PLAINTIFF,
v.
CAROL ADAMS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

E-FILED

Friday, 03 December, 2010 04:12:11 PM

Clerk, U.S. District Court, ILCD

Order

Before the court are the parties' respective motions for summary judgment. For the reasons below, the motions by Defendants Adams, Bednarz, Vance, Anyanwu, Lawshea and Lochard will be granted in full. The motion by Dr. Mitchell will be granted as to all claims other than the plaintiff's claim regarding his current dental needs. Dr. Mitchell will be directed to file a supplemental summary judgment motion on that issue.

Summary Judgment Standard

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992).

Facts

The plaintiff is detained by the State pursuant to the Illinois Sexually Violent Persons Act. In December, 2005, the plaintiff went through the intake procedures at the Joliet Treatment and Detention Center. (Plaintiff's Dep. p. 7). Defendant Dr. Mitchell, a dentist, saw him during intake and wrote down a treatment plan for his teeth. Specifically, the plaintiff maintains that he told Dr. Mitchell at this time that his tooth #2 was painful. (Complaint, para. 7). According to the plaintiff, Dr. Mitchell responded that his tooth #2 was repairable, but that she did not have the materials to repair it on that date. (Complaint para. 11; Plaintiff's Dep. p. 107). Dr. Mitchell allegedly told the plaintiff that she would call him back for treatment in January or February of 2006 to fix tooth #2. (Complaint, para. 13). The records, however, state "next visit fill #31 -Buccal. Scaled Lower right 2/22/05." (d/e 117-4, p. 3). According to the dental records, Dr. Mitchell also planned to provide future treatment for teeth #'s 2, 6, 7, 8, 9, 10, 18, 20, 21 and 31. (d/e 132, p. 1). The date those services were actually rendered, if any, and what service was actually rendered is noted next to the tooth #, and other teeth numbers have since been added. (d/e 117-5, pp. 2, 5). Thus, the "services planned" part of the records changes as the services planned or rendered changes.

The plaintiff was not called back to the dentist in January or February 2006. Around June, 2006, the plaintiff was transferred to the Rushville Treatment and Detention Center as part of the transfer of all the residents from Joliet to Rushville. (Plaintiff's Dep. p. 9). By then, the plaintiff still had not had any work done on his teeth, and he avers that he had a painful hole in tooth #2. (Plaintiff's Dep. p. 9). Though medical issues had been grievable at Joliet, the policy was changed in or around June, 2006, so that grievances could no longer be filed on medical/dental issues once the plaintiff arrived at Rushville. Id. The plaintiff could, however, fill out a health care request form or ask a nurse during med-line for help with his dental problems. (Plaintiff's Dep. p. 73). Medical/dental issues became grievable in the Fall of 2008. (Plaintiff's Dep. p. 87).

Dr. Mitchell began providing dental services to Rushville residents through an independent contractor-Wexford Health Services- in August, 2006. Dr. Mitchell is the only dentist at Rushville, which currently has about 390 residents. The plaintiff believes that the number of residents was more like 250 in 2006-07. Dr. Mitchell currently spends 15 hours per week at Rushville, apparently on the weekends, so the patients must be appropriately triaged to ensure that the most serious needs are met first. (Mitchell Aff. ¶¶ 3-4).

On or around June 24, 2007, about one year after the plaintiff had been transferred to Rushville and 18 months after the December 2005 visit, Dr. Mitchell saw the plaintiff again. This appointment occurred about two weeks after the plaintiff had made reports of tooth pain and lack of treatment to his primary therapist. (d/e 132-1, p. 1). Dr. Mitchell took x-rays, and, according to the plaintiff, told him that she still had no permanent filling material. (Plaintiff's Dep. P. 111; Complaint ¶ 25). Dr. Mitchell allegedly told the plaintiff that she had been ordering supplies for six months but had not received any. (Complaint ¶ 27). The records for that day state "(next visit fill #2 and #31) 7/1/07." By this time, the plaintiff maintains that parts of tooth #2 had broken off and the hole in tooth #2 had gotten larger. (d/e 132, p.1).

According to the plaintiff, he went back to Dr. Mitchell on July 1, 2007, and was told by Defendant Lawshea that the supplies still had not come in. (Complaint ¶ 31). Lawshea allegedly told the plaintiff that she believed that DHS staff were failing to follow up or trying to stall the orders, and she allegedly advised the plaintiff to file a grievance (which apparently was not an option at that time). (Complaint, ¶ 31). The plaintiff testified in his deposition that Dr. Mitchell and Lawshea both told him that the supply request was being forwarded to Defendant Vance. (Plaintiff's Dep. p. 136.)Dr. Mitchell concedes that "[a]ll of the dental equipment at Rushville underwent major repair or replacement during the first two years that Rushville was in operation." (d/e 132-1, p.2). She would ask the "site administrator, health care unit administrator and/or director of nurses to look into having the repairs conducted, but she did not have the authority to hire people to maintain the equipment." (d/e 132-1, p. 26). Dr. Mitchell would ask Lawshea to request supplies from the medical vendor.*fn1 (d/e 132-1, p. 26). According to Lawshea, Lawshea would notify Defendant Vance of a problem with the equipment or the need for supplies. (d/e 132-1, p.2). The contract between Wexford and Dr. Mitchell states that "Provider [Mitchell] agrees that if he/she determines than an Inmate requires care beyond that possible to be provided during an on-site visit, he/she will work with the Site Medical Director to request a referral to a contracted off-site provider for services." (d/e 132-4). Thus, Dr. Mitchell had the power to bring about the referral of a resident to an outside dentist.

Defendant Vance was Rushville's health care director from July 2001 to August 31, 2007. She was not responsible for approving dental supplies, but she was responsible for receiving dental supply orders and "submitting them." (d/e 99-6, p. 4, ¶ 5). She does not say to whom she submitted these orders or what her responsibilities were regarding following up on the orders to ensure that the needed supplies were received. There is no affidavit from Vance in the record. In the absence of evidence otherwise, the court draws that inference that Vance was responsible for obtaining the necessary dental equipment and supplies for Rushville, as relayed to her by Dr. Mitchell or Defendant Lawshea.*fn2 See also discussion below.

On July, 23, 2007, Dr. Mitchell saw the plaintiff. She put a temporary filling in tooth #31 and performed some cleaning. However, she did no work on tooth #2 at that time, though the plaintiff maintains that he told her that it was tooth #2 that was bothering him the most.

On August 5, 2007, the plaintiff was eating dinner when a "large piece of the tooth [#2] broke off completely . . . ." (Complaint ¶ 35). On August 25, 2007, Dr. Mitchell saw the plaintiff and tried to put a filling in tooth #2, but the decay was too extensive. The only option was to extract tooth #2, which Dr. Mitchell did with the plaintiff's reluctant consent (because he essentially had no choice). Dr. Mitchell then prescribed Motrin for 7 days, but the plaintiff's intake sheet indicates that he is allergic to Motrin.

In November 2007, the plaintiff's primary therapist e-mailed Dr. Mitchell regarding the plaintiff's concerns over his dental needs. (Plaintiff's Dep. 121). Dr. Mitchell responded to the inquiry, but the court does not see the response in the record. (d/e 132, p.7).

About five months later, on April 30, 2008, the plaintiff submitted a health care request form reporting that the temporary filling in tooth #31 had fallen out and that he had never been called back for a permanent filling. (d/e 117-6, p.4). On May 4, 2008, Dr. Mitchell put another temporary filling in tooth #31 and again prescribed Motrin, though the plaintiff says that he told Dr. Mitchell of his allergy to Motrin. The plaintiff asserts that Dr. Mitchell told him that tooth #31 was now too far gone and would have to be pulled, but the plaintiff refused and persuaded Dr. Mitchell to try to save the tooth.

Dr. Mitchell saw the plaintiff on May 25, 2008, but was unable to provide treatment because the ...


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