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Jimmie L. Ford, # B-18015 v. Wexford Health Source

April 4, 2013

JIMMIE L. FORD, # B-18015, PLAINTIFF,
v.
WEXFORD HEALTH SOURCE, JANETTE KINKADE, L. OVERALL AND S. HAGENE DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, currently incarcerated at Menard Correctional Center ("Menard"), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving, among other sentences, a sixty year sentence for attempted murder and a thirty year sentence for felony possession of a weapon in prison. Plaintiff claims that the four defendants, Wexford Health Source (employer of medical staff at Menard), Janette Kinkade (nursing supervisor at Menard),

L. Overall (dental director at Menard), and S. Hagene (dental hygienist at Menard), violated his constitutional rights by denying him adequate treatment for a broken tooth (Doc. 1, p. 12). Plaintiff seeks declaratory judgment and compensatory and punitive damages (Doc. 1, p. 14).

Specifically, Plaintiff alleges that on June 14, 2011, one of his teeth broke, causing excruciating pain (Doc. 1, p. 3). Plaintiff put in a sick call request, but there was no response. Plaintiff also submitted treatment requests to the dental department, again without any response (Doc. 1, p. 4). Over time, Plaintiff's pain increased, and his tooth continued to fragment.

On December 5, 2011, approximately six months after Plaintiff's tooth broke, a dental hygienist called Plaintiff in for a cleaning, which Plaintiff refused. Plaintiff explained to Defendants Hagene and Overall that he was in pain because of a broken tooth. He requested pain medication and dental treatment. Defendants Hagene and Overall agreed to schedule Plaintiff for a dental appointment (Doc. 1, pp. 4-5). Neither Defendant examined Plaintiff's tooth, provided medication, or disclosed his appointment date (Doc. 1, p. 5).

After another 2 and a half months passed without treatment, Plaintiff submitted a written request for pain medication and dental treatment to Defendant Overall on February 24, 2012 (Doc. 1, p. 5; Doc. 1-1, p. 15). Plaintiff also filed two grievances, dated March 15th and April 2nd, setting forth the same requests (Doc. 1, pp. 5-6; Doc. 1-1, pp. 4-7). Defendant Kinkade responded to both grievances in a memorandum dated March 28th, which Plaintiff received on April 11th (Doc. 1, p. 6; Doc. 1-1, p. 9). In the response, Defendant Kinkade explained that Plaintiff was on a long waiting list to see a dentist and should submit a sick call request to the dentist if more immediate treatment was necessary. Plaintiff filed an appeal with the warden the following day (Doc. 1-1, p 8). In it, Plaintiff explained that he had, on multiple occasions, filed sick call requests and had even resorted to having other inmates with dental appointments deliver these treatment requests directly to the dental department.

On April 18th, Plaintiff spoke to a medical technician, with whom he was acquainted, about his untreated dental issues (Doc. 1, p. 6). The medical technician agreed to help Plaintiff secure treatment by delivering Plaintiff's written treatment request to the dental department (Doc. 1, pp. 6-7). The following day, Plaintiff was called to the dental department, where a dentist examined Plaintiff's tooth, treated him for infection, provided him with pain medication, and scheduled an extraction (Doc. 1, p. 7). The dentist extracted Plaintiff's tooth on April 24, 2012.

In his complaint, Plaintiff claims that Defendant Wexford Health Source (the employer of medical staff at Menard) violated his constitutional right to receive adequate dental care by adopting unconstitutional policies which delay the treatment of Menard inmates (Doc. 1, pp. 10, 12).

Plaintiff further claims that all defendants exhibited deliberate indifference to his dental needs by delaying treatment of his pain and his broken tooth, in violation of Plaintiff's rights under the Eighth and Fourteenth Amendments (Doc. 1, pp. 12-13).

Merits Review Pursuant to 28 U.S.C. § 1915A

According to 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable Eighth Amendment claim (Count 1) against Defendants Wexford Health Source, based on his allegation that an unconstitutional policy resulted in a delay in his treatment, and against all remaining defendants, including Defendants Kinkade, Overall, and Hagene, based on his allegation that each individual exhibited deliberate indifference to his serious dental needs.

However, Plaintiff's Fourteenth Amendment due process claim (Count 2) shall be dismissed because it is duplicative of the Eighth Amendment deliberate indifference claim. Both claims are based on identical facts, and Plaintiff's case is not enhanced by the addition of a Fourteenth Amendment claim. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing equal protection and Eighth Amendment claims based on same circumstances as free exercise claim because free exercise claim "gains nothing by attracting additional constitutional labels"). Accordingly, Count 2 is dismissed with prejudice.

Disposition

COUNT 2 is DISMISSED with ...


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