The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Monday, 29 October, 2012 01:21:00 PM
Clerk, U.S. District Court, ILCD
Plaintiff, proceeding pro se, is detained in the Rushville Treatment and Detention Center. He pursues claims for deliberate indifference to his dental needs. Now before the Court are Defendants' motions for summary judgment. For the reasons below, the Court denies Dr. Mitchell's motion for summary judgment and grants the motion for summary judgment by Defendants Bednarz and Kibby.
SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A movant may demonstrate the absence of a material dispute through specific cites to admissible evidence, or by showing that the non-movant "cannot produce admissible evidence to support the [material] fact." Fed. R. Civ. P. 56(c)(B). If the movant clears this hurdle, the non-movant may not simply rest on his or her allegations in the complaint, but instead must point to admissible evidence in the record to show that a genuine dispute exists. Id.; Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). "In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the
most favorable to the non-movant, with material factual disputes
resolved in the non-movant's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material
fact exists when a reasonable juror could find for the non-movant. Id.
Plaintiff is detained in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. Defendant Dr. Mitchell is the only dentist providing services to several hundred residents at the facility. According to Plaintiff, Dr. Mitchell is supposed to work 15 hours per week at the facility.
On or about November 10, 2010, Plaintiff submitted a request for dental care for a permanent filling for his "right eye tooth," which the parties agree is also called "tooth number 6." According to Plaintiff, temporary fillings had been placed in tooth number 6 and Dr. Mitchell had planned to do a permanent filling. Plaintiff's request stated, "You put a temporary filling in my right eye tooth about a month ago. I know you're real busy. But you said you'll call me to put a permanent filling in. Just a reminder. Thank you!" (11/10/10 health care request, d/e 52-1, p. 43.)
Dr. Mitchell examined Plaintiff on Sunday, November 21, 2010 at around 8:00 p.m. (the Sunday before Thanksgiving). According to Plaintiff, Dr. Mitchell put a permanent filling in tooth 7 and began working on tooth number 6. After working a while on tooth 6, Dr. Mitchell told Plaintiff that fixing tooth 6 was going to require a root canal, which would take about two hours. According to Plaintiff, Dr. Mitchell also said that she did not have time to do the root canal because she needed to catch a train and that extracting tooth 6 would be faster and allow her to catch the train. (Pl.'s Dep. pp. 11, 13-14, 29; 52-1.). Plaintiff signed a consent form for the extraction, but, according to Plaintiff, did so only under duress and only after the tooth had actually been extracted. In Plaintiff's mind he had little choice but to sign the consent, since Dr. Mitchell had already begun drilling. Plaintiff feared that refusing to consent to the extraction would have caused him to suffer a painful hole in his mouth until another appointment could be arranged in the indefinite future. (Hyatt Aff. ¶ 2, d/e 57-3.)
Dr. Mitchell performed the extraction of tooth 6, but, according to Plaintiff, part of tooth 6 did not come out. (Plaintiff's Dep. p. 19, d/e 52-1, p. 6.) After the procedure, Dr. Mitchell told Plaintiff he would be fine and that she would check on him when she returned on Sunday, November 28, 2010. However, the day after the extraction Plaintiff awoke to throbbing pain and missing stitches. (Hyatt Aff. ¶ 4.) November 28th (the Sunday after Thanksgiving) came and went, with no appearance by Dr. Mitchell. Plaintiff later heard that Dr. Mitchell was out for what Plaintiff believes was elective and pre-planned eye surgery. He believes that Dr. Mitchell knew she would not be back to see Plaintiff on November 28th.
On November 28, 2010, after Dr. Mitchell did not show, Plaintiff filled out a health care request slip seeking help for his pain and reporting what he believed to be an infection at the extraction site. (11/28/10 request slip, 52-1.) What happened to this request is not in the record. Plaintiff submitted another health care request the next day, on November 29, 1010. (11/29/10 request slip, 52-1.) In his November 29 request, Plaintiff described intense pain and relayed his fear that he had an exposed nerve. The same day-November 29th- Plaintiff was seen by Dr. Lochard, a physician who works at the facility. Plaintiff's medical progress notes from that day reflect that Dr. Lochard examined the extraction site, noting mild tenderness, no swelling, no redness, and no discharge. ...