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Danny Gene Wolfe, #16680-045 v. Harvey G. Lappin

December 19, 2011


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


Plaintiff Danny Gene Wolfe, an inmate in Big Spring Federal Correctional Institution, Texas, brings this action for deprivations 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). Plaintiff's claims are based in part on events that occurred while Plaintiff was housed at the United States Prison at Marion, Illinois. Plaintiff is serving a 180 month sentence for sexual exploitation of children, concurrent to a 108 month sentence for coercion/enticement of a minor, after a guilty plea in the Western District of Missouri, Case No. 04-cr-3011. 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). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

Initially, a note about the procedural history of this action is in order. Plaintiff first filed this case on March 17, 2011, with an "Affidavit in support of IFP hardship statement and filing of Plaintiff's claim in the Southern District of Illinois" (Doc. 1 in Case No. 11-215). The Court construed that affidavit as a complaint. In it, Plaintiff referenced another complaint he had previously filed in the Northern District of Texas (Wolfe v. Beltran, No. 11-cv-0015 (N.D. Tex., filed Jan. 27, 2011)).*fn1 Some of the claims in the Texas case were severed and transferred to the Northern District of Illinois.*fn2 Plaintiff requested this Court to obtain that complaint for him, presumably so it could be filed in the instant case. This was not done, as it is beyond the scope of this Court's duties or authority. Plaintiff then filed a new 44-page complaint in this Court, which was docketed in Case Number 11-cv-450 (Doc. 1). When it was discovered that Plaintiff was bringing the same claims in 11-cv-450 as he had originally raised in the instant case (No. 11-cv-215), the Court sua sponte consolidated the cases into 11-cv-215. Document 1 in 11-cv-450 is now the operative complaint, and all references below to "Document 1" shall be to that document filed in Case Number 11-cv-450, unless specifically indicated otherwise.

Plaintiff began his incarceration in the Federal Bureau of Prisons ("BOP") in April 2004 (Doc. 1, p. 4). At that time, he had been wearing dentures for fifteen years following extraction of all his teeth (Doc. 1-1, p. 1, No. 11-cv-450). However, when Plaintiff came to prison, he did not have his dentures. He claims that BOP policy did not allow his family to send him the dentures he owned before going to prison (Doc. 1, p. 8). Therefore, he was dependent on prison officials to provide him with a new set of dentures. Despite Plaintiff's many requests, he did not get dentures for six and a half years, until October 20, 2010 (Doc. 1, pp. 5-6). Plaintiff claims the Defendants intentionally denied his ongoing requests to be fitted with dentures. For the entire time that he went without dentures, Plaintiff had to eat without being able to properly chew his food. This caused him to endure daily pain and suffering; choking; sore and bleeding gums; digestive problems including constipation, hemorrhoids, and rectal bleeding that led to dependence on laxatives and lazy bowel syndrome (a condition that Plaintiff alleges is now permanent); dramatic weight loss; disfigurement and mental anguish (Doc. 1, pp. 8, 15, 24, 40-41).

Plaintiff has been transferred from one BOP institution to another several times since April 2004. He began his incarceration in Illinois, where he was seen by Defendant Ross, the chief dental officer at MCC Chicago. He then was moved to FCC Forest City in Arkansas, where Defendant Morley, the chief dental officer, saw him in August 2006. Plaintiff next went to USP/SCP Lompoc, California. He saw Defendant Wooten, the Lompoc dental officer, on January 5, 2007, who recommended a prosthodontic (denture) evaluation (Exhibit C, Doc. 1-2, p. 3, 11-240). At that time, he had gone thirty-three months without dentures (Doc. 1, p. 5).

Plaintiff arrived at USP-Marion on or about October 1, 2007, and remained there until approximately April 15, 2009. During this eighteen month period, Marion Defendants Warden Bledsoe, Jane Doe Warden, John Doe Chief Dental Officer, and John Doe Health Services Administrator all failed to provide Plaintiff with dentures. Plaintiff claims his name was on the BOP waiting list for dentures well before he arrived at Marion, and that BOP officials had regularly told him he was "on the list" in response to his inquiries (Doc. 1, p. 22; Doc. 1-1, p. 2 in Case No. 11-450). He also states that the Marion Defendants, as well as Defendants Nalley (the BOP regional director) and Lappin (the Director of the BOP), failed to ensure that dental care was available for him or other Marion inmates, because they had no dentist working there until the last two weeks of Plaintiff's eighteen-month stay in Marion (Doc. 1, p. 5). Moreover, the John Doe Chief Dental Officer as well as the John Doe Health Services Administrator at Marion told Plaintiff that he would not get his prescribed dentures while he remained at Marion (Doc. 1, pp. 11-12).

Next, Plaintiff was moved to Big Spring FCI, Texas, on May 7, 2009, where he remains (Doc. 1, p. 43).*fn3 After renewing his requests for dentures to Defendant Beltran (the Big Spring chief dental officer) and filing requests for administrative remedies with Defendants Martinez (Big Spring Health Services Administrator) and Edenfield (Big Spring Warden), Plaintiff finally got dentures on October 20, 2010 (Doc. 1, p. 24). He claims that neither the Marion Defendants nor the BOP Defendants informed the Big Spring Defendants that Plaintiff had already been on a waiting list for dentures for some time before his transfer to Big Spring. Instead, the Big Spring denture waiting list reflected only that Plaintiff made his request for dentures as of October, 2009 (Exhibits BB and DD, Doc. 1-2, pp. 28-29, in Case No. 11-450). Plaintiff contends that had ...

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