Liebich v. Hardy
| Decision Date | 19 August 2013 |
| Docket Number | No. 11 C 5624,11 C 5624 |
| Parties | RANDY R. LIEBICH, Plaintiff, v. WARDEN MARCUS HARDY; ALBERT J. KISSELL; N. JACKSON; JOHNNIE L. FRANKLIN; CHARLES P. FREDERICK; ILLINOIS DEPARTMENT OF CORRECTIONS; WEXFORD HEALTH SOURCES, Inc.; PARATHASARATHI GHOSH, M.D.; LIPING ZHANG, M.D.; RONALD SCHAEFER, M.D.; SALEH OBAISI, M.D., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff, an inmate at Stateville Correctional Facility, has filed a fourteen-count second amended complaint against Warden Marcus Hardy, Albert J. Kissell, N. Jackson, Johnnie L. Franklin, Charles P. Frederick, and the Illinois Department of Corrections ("the IDOC defendants"); and Wexford Health Sources, Inc. ("Wexford"), Parathasarathi Ghosh, M.D., Liping Zhang, M.D., Ronald Schaefer, M.D., and Saleh Obaisi, M.D. (the Wexford defendants"). The complaint alleges counts of: Cruel and Unusual Punishment, in violation of 42 U.S.C. § 1983 (Counts I- VI); Retaliation, in violation of 42 U.S.C. § 1983 (Count VII); Failure to Intervene, in violation of 42 U.S.C. § 1983 (Count VIII); Violation of the Right to Procedural Due Process, in violation of 42 U.S.C. § 1983 (Count IX); Violation of the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134 (Count X); Violation of the Rehabilitation Act, 29 U.S.C. § 794 (Count XI); Negligent or Willful and Wanton Conduct, in violation of Illinois law (Count XII); Intentional Infliction of Emotional Distress, in violation of Illinois law(Count XIII); and Respondeat Superior under Illinois law (Count XIV). The IDOC defendants have filed a motion to dismiss Counts I and VIII - XIV, and the Wexford defendants have filed a motion to dismiss Counts II-VI, VIII, IX, XII, and XIII, both motions for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons described below, the court denies defendants' motion to dismiss: Counts I-VI; Count IX against Hardy, Franklin, and Frederick; Counts X and XI against IDOC; Count XII against the Wexford defendants, Franklin, and Frederick; and Count XIII against Wexford defendants. The court grants defendants' motion to dismiss Counts VIII and IX against the Wexford defendants, Kissell, and Jackson; Counts X and XI against all individual defendants; Count XII against Kissell, Hardy, and Jackson; Count XIII against the IDOC defendants; and Count XIV.
Plaintiff has been incarcerated in Stateville Correctional Facility since 2005. In his complaint, plaintiff alleges that he began experiencing pain in this abdomen and kidneys by September 2009, and by November 4, 2009, he began requesting medical treatment from the Stateville medical staff for his pain. Plaintiff alleges that the Wexford defendants provided only cursory treatment and refused plaintiff's request for further medical treatment. He also alleges that Hardy inappropriately affirmed the denial of his many grievances related to medical care.
Specifically, plaintiff alleges that on various dates between November 2009 and May 2010, plaintiff was seen by Dr. Zhang for his abdominal pain. Plaintiff alleges that Zhang refused to provide anything more than cursory treatment for the pain, offered no medication toaddress plaintiff's pain beyond a single Donnatal pill and Excedrin Migraine, and refused to provide plaintiff with a referral to a specialist, despite plaintiff's request. Lab tests were ordered and returned abnormal results, but plaintiff was not provided with further treatment or medication. Plaintiff also alleges that Zhang told him that she would not refer him to a urology specialist because it was too costly, and that in order to get a referral, plaintiff's condition would have to be "life threatening." Between December 2009 and April 1, 2010, plaintiff submitted medical requests to both Zhang and Dr. Ghosh, but most requests were not answered.
On April 2, 2010, plaintiff filed a grievance ("first grievance") regarding the lack of a response to his medical requests, and once again requested treatment for his abdominal pain. The grievance officer denied the grievance, stating that medical furloughs had been previously scheduled. Plaintiff alleges that those furloughs were related to cardiologist consultations, were unrelated to his requests regarding abdominal pain, and that the grievance was therefore wrongly denied. Hardy confirmed the denial of the grievance.
Plaintiff filed another grievance ("second grievance") on April 26, 2010, explaining the reasons for the previous furloughs and requesting treatment for his abdominal pain. The request was deemed moot by the grievance officer in September 2010.
On June 26, 2010, plaintiff was diagnosed by Dr. Obaisi with an "impacted urinary calculus," or kidney stone. Obaisi first attempted to surgically remove the stone without anesthesia. After plaintiff demanded anesthesia, Obaisi made several lidocaine injections into the tip of plaintiff's penis and inside the urethra. Obaisi also allegedly stretched open plaintiff's urethra with a hemostat, causing a small tear, and punctured plaintiff with a pair of tweezers. Plaintiff alleges that all of these actions caused bleeding and pain.
Obaisi subsequently decided to transfer plaintiff to St. Joseph's Hospital in Joliet, Illinois, for emergency treatment. Plaintiff alleges that he was forced to wait in a "holding cage" for over four hours before being transferred to the hospital, and that this undue delay was due to a policy that requires all employees to obtain authorization from the Medical Director and/or Chief Administrative Officer before calling for emergency transport. Plaintiff further alleges that he experienced extreme pain as a result of the pressure of his full bladder and the injuries inflicted by Obaisi.
Plaintiff was transported to St. Joseph Medical Center, where a urology specialist determined that plaintiff would have to have the kidney stone removed by a laser procedure while under anesthesia. Plaintiff was discharged from the hospital the next day, June 27, 2010.
Following the procedure, in June and July 2010, plaintiff was treated multiple times by Ghosh. Plaintiff demonstrated the injuries inflicted by Obaisi to Ghosh and complained about the pain he was experiencing. Ghosh allegedly prescribed Motrin for the pain, but plaintiff did not receive the prescribed medication. At a later consultation, plaintiff advised Ghosh that he was not receiving the medication, but Ghosh declined to take any action.
On July 1, 2010, plaintiff filed a grievance ("third grievance") related to Obaisi's treatment of his kidney stone and the failure to receive the prescribed Motrin. The grievance officer acknowledged the prescription, but did not address the failure to receive the medication, and dismissed the grievance. Hardy confirmed the dismissal.
On July 2, 2010, Gosh examined plaintiff for his abdominal pain, and plaintiff reported that he was not receiving the medication prescribed. Plaintiff also requested a follow up consultation with a urology specialist to deal with complications that resulted from the June 26procedures. Ghosh declined to provide medication and refused to refer plaintiff for a follow-up consultation with a specialist. Plaintiff also alleges that Ghosh ordered further lab tests and did not take any action when the results were returned abnormal.
On August 10, 2010, plaintiff was seen by Dr. Shaefar in the asthma clinic and described his abdominal pain and the injuries sustained from the June 26 procedure. Shaefar refused to provide plaintiff with any treatment, because plaintiff's abdominal pain was not the reason for the appointment.
Plaintiff filed a grievance ("fourth grievance") against Zhang, Ghosh, and Shaefar for failing to document his medical complaints. When he received no response, plaintiff filed another grievance ("fifth grievance") in the form of a letter on August 29, 2010. Plaintiff sent an "emergency grievance" ("sixth grievance") to Hardy on September 6, 2010, complaining of severe pain in his abdomen, kidney, testicles, and bladder, swelling in his abdomen, and that he was unable to empty his bladder during urination. Plaintiff claimed that the medical staff was denying him treatment for his symptoms. Hardy denied the grievance as a "non-emergency."
On September 17, 2010, plaintiff was evaluated by Ghosh for complaints of pain in his side and abdomen, as well as trouble urinating and emptying his bladder during urination. Plaintiff opined that kidney stones had begun to redevelop, and Ghosh allegedly referred plaintiff to the Urology Clinic at the University of Illinois, although plaintiff was never transported to the clinic.
On September 22, 2010, sent another "emergency grievance" to Hardy ("seventh grievance") requesting emergency medical care at an outside hospital to treat his severe pain anddifficulty emptying his bladder. The grievance officer denied the grievance approximately seven months later and Hardy affirmed the denial as a "non-emergency."
On September 25, 2010, plaintiff was admitted to the Stateville infirmary to have a catheter installed to drain his bladder. Plaintiff claims that his inability to urinate and the catheterization were noted on his medical records.
Plaintiff has also alleged counts against the IDOC defendants related to a disciplinary incident connected to his medical condition. On January 5, 2011, defendant Kissell ordered plaintiff to provide a urine sample within two hours for drug testing. Plaintiff informed Kissell of his medical condition, requested that Kissell verify his medical condition by consulting his medical records, and requested additional time to provide the sample, but was informed that noncompliance with the instruction would result in penalties. When plaintiff did not produce the sample, Kissell informed plaintiff that he would be sentenced to disciplinary action including six months C grade and...
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