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Littek v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

April 15, 2016

THOMAS ANTHONY LITTEK, Plaintiff
v.
HAROLD CLARKE, et al., Defendants

          REPORT AND RECOMMENDATION

          PAMELA MEADE SARGENT, Magistrate Judge.

         The pro se plaintiff, Thomas Anthony Littek, an inmate incarcerated at Pocahontas State Correctional Center, ("Pocahontas"), brings this civil rights action pursuant to 42 U.S.C. § 1983, against the defendants, Harold Clarke, Director of the Virginia Department of Corrections, ("VDOC"), Frederick Schilling, VDOC's Medical Director, Stanley Young, Warden at Pocahontas, and Adam K. Wyatt, VDOC's Chief Dentist.[1] In his Complaint, Littek alleges that the defendants violated his Eighth Amendment rights through their deliberate indifference to his need for dental treatment and dentures. (Docket Item No. 1, ("Complaint.")) Littek also has filed motions requesting that preliminary injunctive relief be entered. (Docket Item Nos. 7, 28, ("Motions.")) An evidentiary hearing was held on the Motions on March 31, 2016. For the reasons discussed below, I recommend that the court deny Littek's Motions requesting preliminary injunctive relief.

          I. Facts

         In his Complaint, Littek claims that the defendants have denied him necessary dental care in deliberate indifference to his serious medical needs. Littek seeks injunctive relief requiring the defendants to provide "dental care that will restore plaintiff's oral health." (Complaint at 10-11.) In the Motions, Littek seeks preliminary injunctive relief requiring the defendants "to provide a medically appropriate course of treatment to the plaintiff designed to restore plaintiff's oral health and restore the full function of plaintiff's mouth."[2] In a declaration attached to one of the Motions, Littek stated that he suffered pain, swelling and bleeding in his mouth. (Docket Item No. 7-1 at 1.)

         According to Littek's testimony at the March 31 hearing, he received a dental evaluation upon intake and subsequent dental treatment at Powhatan Correctional Center, ("Powhatan"), in April 2015. Littek testified that the dentist who performed this intake evaluation told him that he needed dentures. Littek said that, while at Powhatan, he filed an Offender Request form on May 8, 2015, requesting upper dentures. (Plaintiff's Exhibit No. 3, Docket Item No. 46-3.) Littek testified that he was transferred to Pocahontas on May 22, 2015, and, upon his arrival, he immediately filed a Request for Service Form, (Plaintiff's Exhibit No. 4, Docket Item No. 46-4), requesting to see a dentist "to be fitted for an upper denture." Littek said that he received this form back a few days later, on which it stated that he was scheduled to see the dentist.

         Littek testified that he filed another Request for Service Form, (Plaintiff's Exhibit No. 5, Docket Item No. 46-5), on May 31, 2015. He said that this form also was returned to him a few days later, stating that he was "already scheduled" to see the dentist. On June 6, 2015, Littek testified that he filed another Request for Service Form, (Plaintiff's Exhibit No. 6, Docket Item No. 46-6), asking when he would see the dentist. The response on the form was: "You will get a pass in the mail when your appointment comes up." Littek said he filed another Request for Service Form, (Plaintiff's Exhibit No. 7, Docket Item No. 46-7), on June 12, 2015. The response was: "You are already scheduled."

         Littek testified that on June 13, 2015, he filed another Request for Service Form, (Plaintiff's Exhibit No. 8, Docket Item No. 46-8), requesting the names of Pocahontas's medical contractor, the name of the company's chief executive officer and the company's address for litigation purposes. Littek said he did not receive the requested information, but was, again, told that he was scheduled to see the dentist. Littek stated that on June 26, 2015, he filed an Informal Complaint alleging that the dental staff at Pocahontas was being deliberately indifferent to his need for dental treatment and dentures. (Plaintiff's Exhibit No. 9, Docket Item No. 46-9.) The response from the Dental Department to this Informal Complaint was that the department had received each previous request that Littek had sent and that he would receive a pass in the mail when his appointment was scheduled.

         Littek testified that he filed a Regular Grievance regarding his need for dental treatment and dentures on July 2, 2015. (Plaintiff's Exhibit No. 10, Docket Item No. 46-10.) The Level I response to Littek's Grievance was that his claim was unfounded because his condition did not constitute an emergency, and he was on the list to be seen by dental. (Plaintiff's Exhibit No. 12, Docket Item No. 46-12.) Littek appealed this decision. (Plaintiff's Exhibit No. 13, Docket Item No. 46-13.) In the Level II response, Littek was told that his request for dentures was not a serious medical issue, but, rather, was routine dental care, which would be addressed in the chronological order of his request. (Plaintiff's Exhibit No. 15, Docket Item No. 46-15.) His claims were again determined to be unfounded.

         Littek filed another Request for Service Form on July 17, 2015, asking when he would see a dentist. (Plaintiff's Exhibit No. 11, Docket Item No. 46-11.) Again, the response was that he was "scheduled" to see a dentist. Littek also said that he sent a letter to Warden Young on August 1, 2015, seeking the names and titles of all persons at VDOC having responsibility for providing dental care because he planned to file suit against them. (Plaintiff's Exhibit No. 14, Docket Item No. 46-14.) Littek testified that the only response he received was his letter returned with a copy of a June 11, 2009, Memorandum from Warden Young addressing Tobacco Regulations and Correspondence To The Warden's Office. (Plaintiff's Exhibit No. 16, Docket Item No. 46-16.) This memorandum stated, in part: "Offenders are also reminded that submitting letters to staff members instead of using the Request for Service form... [is] not authorized. These items will be returned without a response."

         Littek testified that he saw the dentist at Pocahontas on August 14, 2015, and he had an impression made of his upper gums only. Pursuant to the dentist's instruction, Littek said that he submitted a Request for Service Form later that same day requesting to have his remaining teeth cleaned. (Plaintiff's Exhibit No. 17, Docket Item No. 46-17.) On this form, Littek stated that he preferred to have his remaining bottom teeth pulled and a bottom denture made before his release date.

         Littek also testified that he submitted an Informal Complaint on August 11, 2015, based on his cell being searched and his receiving a disciplinary charge. (Plaintiff's Exhibit No. 18, Docket Item No. 46-18). Littek said that he believed that this search and subsequent charge was in retaliation for his repeated filings requesting dental treatment. Littek testified that the dentist saw him again on September 18, 2015. On this occasion, the dentist pulled all but four of Littek's bottom teeth. Littek said that he filed a Request for Service Form on September 21, 2015, (Plaintiff's Exhibit No. 19, Docket Item No. 46-19), because the dental technician told him that the Dental Department would not make a set of lower dentures for him. Again, the only response was that Littek was scheduled for an appointment. Littek conceded that he saw the dentist again on September 24, 2015, and an impression was made of his bottom gums.

         Littek testified that, without teeth or dentures, eating was painful and difficult. He stated that he could not eat salad or hard items such as taco shells. He also stated that it was difficult to eat breaded meat patties, sandwiches and hotdogs without teeth or dentures. Littek stated that inmates at Pocahontas are given only one utensil with meals, a utensil called a "spork, " which is a combination spoon and fork. He said that no knives are provided. Littek said that he tries to cut his food into smaller pieces with the spork, but that, because he has no teeth, he must swallow many large chunks of food. Littek also stated that the four remaining bottom teeth cut into his upper gums when he chews. Littek conceded that, despite his complaints of pain, he never requested to be seen by the medical staff at Pocahontas.

         Littek called inmate Rodney Wayne Mullins, #1063288, to testify that, as a VDOC inmate at Pocahontas, he had waited for seven months before he saw a dentist two weeks prior to the hearing date. Mullins said that he had only five bottom teeth remaining, and he was trying to get put on the schedule to receive dentures. Mullins said that he had arrived at Pocahontas in July 2015 with 10 remaining teeth. He said that his five remaining top teeth were pulled in July 2015 after he arrived at Pocahontas. Mullins said that he was supposed to be "fitted" for dentures and was allowed to go to the Dental Department about two weeks prior to the hearing date. Mullins said that the dentist told him that he would not make dentures for him if he had no "money on the books." Mullins said that he had never been offered a soft diet. He testified that he had once requested a soft diet and was told by one of the dental assistants that the prison would not provide such a diet. Littek also submitted a sworn statement from Mullins into evidence. (Plaintiff's Exhibit No. 1, Docket Item No. 46-1.)

         Littek also called inmate Michael Brady Lester, #1179394, to testify. Lester said that he had a filling fall out of one of his teeth about six months ago and that, as a result, he had suffered from a lot of pain. Lester stated that, for the past six months, the only response he had be given to his requests for dental treatment was that he was scheduled. Littek also ...


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