Foster v. Ghosh

Decision Date26 November 2013
Docket NumberNo. 11 C 5623,11 C 5623
Citation4 F.Supp.3d 974
PartiesTony Foster, Plaintiff, v. Dr. Parthasarathi Ghosh, Dr. N. Patterson, O.D., Warden Michael Lemke, and Sarah Johnson, Defendants.
CourtU.S. District Court — Northern District of Illinois


James Angelo Leventis, Panos T. Topalis, Tribler, Orpett & Meyer P.C., Chicago, IL, for Plaintiff.

Illinois Department of Corrections, Matthew H. Weller, Joseph Jack Lombardo, Patrick Eugene Halliday, Ronald E. Neroda, Cassiday Schade LLP, Michael John Charysh, Edwin J. Olson, Charysh & Schroeder, Ltd., Jessika Yvette Osorio, Sunil Shashikant Bhave, Illinois Attorney General, Saira Janine Alikhan, Amin Talati, LLC, Chicago, IL, Gary Knight Mickey, Bernard K. Weiler, Catherine Elizabeth Malesky, Jessica Lynn Drahos, Mickey, Wilson, Weiler, Renzi & Andersson, P.C., Aurora, IL, Dean M. Frieders, Frieders Law, LLC, St. Charles, IL, for Defendants.


Virginia M. Kendall, United States District Court Judge

Plaintiff Tony Foster filed suit against Defendants Dr. Parthasarathi Ghosh, Dr. Norman Patterson, Warden of Stateville Correctional Center Michael Lemke, and Sarah Johnson, a member of the Administrative Review Board (collectively, the Defendants). Foster alleges deprivation of his Eighth Amendment rights under 42 U.S.C. § 1983 as a result of Defendants' deliberate indifference to his serious medical needs. Foster's motion for a preliminary injunction requests an order that Defendants grant him access to an ophthalmologist to evaluate his cataracts and subsequently provide him with adequate treatment pursuant to that ophthalmologist's recommendation. The motion was presented on September 9, 2013 but the parties did not request a fact hearing. Dr. Patterson did not respond to the motion. For the reasons stated below, the preliminary injunction is granted.


In 1977, Foster had surgery to correct a detached retina and cataract in his left eye and has been legally blind in that eye ever since.1 He became a prisoner under the care of the Illinois Department of Corrections in January 1985. On April 30, 2008, Foster saw Dr. Patterson, an optometrist, regarding the return of the cataract in his left eye, asking him to remove it. Dr. Patterson declined to order surgery (he could not do it himself because he is not an ophthalmologist), and instead prescribed Foster eyeglasses to aid in his vision. Foster again saw Dr. Patterson concerning the cataract in his left eye on September 8, 2009. Again Dr. Patterson declined surgery and altered Foster's eyeglasses prescription. Foster filed a grievance with the Illinois Department of Corrections Administrative Review Board on December 1, 2009, complaining that Dr. Patterson would not remove the cataract from his left eye, and also that a cataract was forming in his right eye. Foster also stated in his grievance that he sought the assistance of Dr. Ghosh, then the medical director of Stateville. Foster's grievance was denied on March 22, 2010. The glasses prescribed by Dr. Patterson did not improve Foster's vision in either eye. In his Amended Complaint, Foster alleges that he filed “request slips” with Dr. Patterson six times from January 20, 2011 through March 23, 2011 and three times with Dr. Ghosh from January 13, 2011 through March 8, 2011. (Dkt. No. 76 ¶ 18–19.) Dr. Patterson and Dr. Ghosh deny knowledge of these writings in their Answers. (Dkt.Nos.77, 78.) Foster's condition did not improve and he filed the present lawsuit on August 17, 2011.

I. Standard

A preliminary injunction represents an extraordinary exercise of judicial power, and is one that is “never to be indulged in except in a case clearly demanding it.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir.1984).2 Whether such a remedy is appropriate depends upon a two-step inquiry in which the court first analyzes whether a given circumstance meets the necessary threshold, and then balances the risks of harm to each of the parties. SeeGirl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, 549 F.3d 1079, 1085–86 (7th Cir.2008). To demonstrate that a preliminary injunction is warranted, a plaintiff must show “1) it has a reasonable likelihood of success on the merits of the underlying claim; 2) no adequate remedy at law exists; 3) it will suffer irreparable harm if the preliminary injunction is denied; 4) the irreparable harm the party will suffer without injunctive relief is greater than the harm the opposing party will suffer if the preliminary injunction is granted; and 5) the preliminary injunction will not harm the public interest.” Kiel v. City of Kenosha, 236 F.3d 814, 815–16 (7th Cir.2000).

The Prison Litigation Reform Act governs the Court's authority to enter an injunction in the corrections context. Westefer v. Neal, 682 F.3d 679, 683 (7th Cir.2012). Any remedial relief granted must therefore be “narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Foster seeks a mandatory injunction, which is “an injunction requiring an affirmative act by the defendant,” and as such must be “cautiously viewed and sparingly issued.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir.1997) (citations omitted).

II. Analysis

The Court begins its analysis by noting that the preliminary injunction does not apply to Johnson because, as a grievance official, she was entitled to rely upon the findings of Dr. Patterson and Dr. Ghosh. SeeGreeno v. Daley, 414 F.3d 645, 657 (7th Cir.2005).

A. Foster's underlying claim has a reasonable likelihood of success.

Foster's underlying claim is that the Defendants were deliberately indifferent to his serious medical need.3 “The Eighth Amendment's prohibition against cruel and unusual punishment, which embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency,’ prohibits punishments that are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’ Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir.2009) (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Consequently, the government must provide “medical care for those whom it is punishing by incarceration.” Estelle, 429 U.S. at 103, 97 S.Ct. 285. “The Eighth Amendment safeguards the prisoner against a lack of medical care that ‘may result in pain and suffering which no one suggests would serve any penological purpose.’ Rodriguez, 577 F.3d at 828 (quoting Estelle, 429 U.S. at 102, 97 S.Ct. 285). Accordingly, “deliberate indifference to [the] serious medical needs” of a prisoner is unnecessary is forbidden by the Constitution. Id. at 104, 97 S.Ct. 285.

A deliberate indifference claim has two parts: an objective component and a subjective component. Roe v. Elyea, 631 F.3d 843, 858 (7th Cir.2011). First, the inmate must demonstrate, objectively, that the claimed deprivation was “sufficiently serious; that is, it must result in the denial of the minimal civilized measure of life's necessities.” Id. (internal citation omitted). Where, as here, the prisoner asserts he received inadequate medical care, “this objective element is satisfied when an inmate demonstrates that his medical need itself was sufficiently serious.” Id. A medical need is “sufficiently serious” when the prisoner's condition “has been diagnosed by a physician as mandating treatment or ... is so obvious that even a lay person would perceive the need for a doctor's attention.” Id. (quoting Greeno, 414 F.3d at 653). Here, Defendants do not dispute that Foster has an objectively serious medical condition, and there is little question that cataracts meet this standard. SeeBurks v. Raemisch, 555 F.3d 592, 594 (7th Cir.2009) (recognizing that cataracts can be a serious medical condition and will amount to a viable deliberate indifference claim).

As for the subjective component, the inmate must establish that prison officials acted with a “sufficiently culpable state of mind.” Roe, 631 F.3d at 857. Although negligence or inadvertence will not be sufficient to show deliberate indifference, “it is enough to show that the defendants knew of a substantial risk of harm to the inmate and disregarded the risk.” Id. (quoting Greeno, 414 F.3d at 653). In other words, “an inmate need not establish that prison officials actually intended harm to befall him from the failure to provide adequate medical care.” Roe, 631 F.3d at 857. Instead, a prison medical official is deliberately indifferent when he realizes that a substantial risk of harm to the prisoner exists but disregards it. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Deliberate indifference can exist if prison officials refuse to provide a prisoner with access to doctors or unreasonably delay a prisoner's treatment such that it prolongs his suffering. SeeEstelle, 429 U.S. at 103–04, 97 S.Ct. 285. Continuing a treatment known to be ineffective can also constitute deliberate indifference. SeeArnett v. Webster, 658 F.3d 742, 752 (7th Cir.2011).

In Berry v. Peterman, 604 F.3d 435, 438 (7th Cir.2010), the prisoner had a toothache and complained of pain so serious that he could barely eat or drink. Due to overcrowding at his prison (where they had a dentist on staff), the prisoner was temporarily transferred to a jail (with no dentist on staff). Id. The prisoner's “modest request[s] to see a dentist went unanswered for two months, in large part because the jail's doctor believed that any dental work could be completed when he was transferred back to the prison. Id. at 438, 441. When the prisoner did eventually transfer back, he was seen by a dentist and received an emergency root canal. Id. at 439. The Berry court denied summary judgment for the doctor and nurse who denied the...

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    ...conditions cases, "the quantification of injury is difficult and damages are therefore not an adequate remedy"); Foster v. Ghosh , 4 F. Supp. 3d 974, 983 (N.D. Ill. 2013) (granting preliminary injunction to prisoner requiring medical attention; no adequate remedy at law exists because "the ......
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    • Detention and Corrections Caselaw Quarterly No. 63, April 2015
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