The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Heinz Henry Ibscher ("Mr. Ibscher"), a state inmate
at Dixon Correctional Center in Dixon, Illinois, sued Warden
Jerry Sternes ("Warden Sternes") and Dr. Antreas Mesrobian ("Dr.
Mesrobian") alleging failure to render proper medical treatment
and deliberate indifference to Mr. Ibscher's medical needs.
Warden Sternes now moves to dismiss Mr. Ibscher's Fourth Amended
Complaint. For the following reasons, Warden Sternes' Motion to
Dismiss is denied.*fn1
Mr. Ibscher is a state prisoner, confined at the Dixon
Correctional Center at all times relevant to this action. Dr.
Mesrobian is a licensed medical physician employed at the Dixon
Correctional Center. Warden Sternes is the Warden of the Dixon
Mr. Ibscher alleges the following facts, which will be accepted
as true for the purposes of this motion: On or about October 27,
1999, Mr. Ibscher was transferred to the Dixon Correctional
Center. At the time of his transfer, Mr. Ibscher had a
pre-existing medical condition which consisted of bleeding ulcers, "gerd", infectious stomach, liver and kidney
disease, and a hernia on the left side of his groin. Shortly
after being transferred to Dixon Correctional Center, Mr. Ibscher
complained of severe pain and notified Dr. Mesrobrian and his
staff. Also, between November 1999 and January 17, 2001, Mr.
Ibscher complained to Warden Sterns that he was in severe pain
and requested medical assistance.
On January 17, 2001, Mr. Ibscher had to have emergency surgery
at KSB Hospital in Dixon, Illinois for internal bleeding. Since
his surgery, Mr. Ibscher has requested that Dr. Mesrobian send
Mr. Ibscher to a gastroenterologist and an internal specialist
for further treatment but Dr. Mesrobian has failed to do so.
On May 23, 2001, Mr. Ibscher filed three grievance reports
based on his medical treatment.*fn2 The first grievance
report indicated that since his January 17, 2001 surgery, Mr.
Ibscher had developed a second hernia on his right testicle and
brought it to the attention of Dr. Mesrobian. Mr. Ibscher's
second grievance report indicated that since his January 17, 2001
surgery, Mr. Ibscher started to suffer from extremely bad
headaches. While Mr. Ibscher indicated Dr. Mesrobian had
prescribed pain reliever for his headaches, Mr. Ibscher requested
tests be done on him and a pain reliever which is effective be
prescribed to him. Mr. Ibscher's third grievance report indicated
that since his January 17, 2001 surgery, Mr. Ibscher has had
tightness and discomfort around his heart and chest area. In
February and March 2001, Mr. Ibscher requested an EKG chest x-ray
and any other tests necessary to determine the cause of his chest
discomfort. According to Mr. Ibscher's Amended Complaint, these
tests have not been ordered by Dr. Mesrobian. On June 22, 2001, Doug Hoyle, the Grievance Officer,
recommended that Mr. Ibscher's grievances be denied because the
"Institutional Inquiry Board is reasonably satisfied that medical
issues have and continue to be addressed; . . ." (See
Grievance Officer's Report, attached as an unmarked exhibit to
the original Complaint.) Additionally, Mr. Hoyle reported that
issues regarding Mr. Ibscher's medical treatment have "been
previously addressed both at the facility level and by the
Administrative Review Board." (Id.) On June 24, 2001, Warden
Sternes concurred with Mr. Hoyle's assessment. Mr. Ibscher
indicated on June 25, 2001, by way of signature, that he was
going to appeal Warden Sternes' decision to the Director, via the
Administrative Review Board.
On July 18, 2001, Mr. Cravens, in a letter, denied Mr.
Ibscher's grievances. Mr. Cravens wrote "[t]his office has
determined the issue will be addressed without a formal hearing."
(See notice from Administrative Review Board, attached as an
unmarked exhibit to the original Complaint.) Mr. Craven's letter
further indicated that "it is the opinion of this office that the
issue was appropriately addressed by the institutional
administration." (Id.) Director Snyder concurred, via his
signature, with Mr. Cravens decision. Warden Sternes received a
copy of the letter. Plaintiff filed his complaint with this court
on February 7, 2002.
The purpose of a motion to dismiss is to test the sufficiency
of the complaint, not to decide the merits. Midwest Gas Serv. v.
Indiana Gas Co., 317 F.3d 703, 714 (7th Cir. 2003). In reviewing
a motion to dismiss, a court construes all allegations in the
complaint in the light most favorable to the plaintiff, taking
all well-pleaded facts and allegations within the complaint as
true. Albany Bank & Trust Co. v. Exxon Mobil Corp.,
310 F.3d 969, 971 (7th Cir. 2002). The moving party bears the burden of
showing "beyond doubt that the plaintiff can prove no set of
facts in support of his claim" that would entitle him to relief. Chillmark Partners, LLC, v.
MTS, Inc., 02 C 5339, 2003 WL 1964408, at *2 (N.D. Ill April 25,
2003) (citing Conley v. Gibson, 355 U.S. 41, 45 (1957)).
Dismissal is appropriate only when "it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." Henderson v. Sheahan,
196 F.3d 839, 846 (7th Cir. 1999).
Federal notice pleading, as opposed to fact pleading, requires
only that the plaintiff "set out in her complaint a short and
plain statement of the claim that will provide the defendant with
fair notice of the claim." Scott v. City of Chicago,
195 F.3d 950, 951 (7th Cir. 1999). Thus, a plaintiff "must set out
sufficient factual matter to outline the elements of his cause of
action or claim, proof of which is essential to his recovery."
Menard Inc. v. U.S. Equities Dev., Inc., No. 01 C. 7142, 2002
WL 31050160, at *1 (N.D. Ill. Sept. 13, 2002).
Warden Sternes argues that Mr. Ibscher's Fourth Amended
Complaint fails to state a claim upon which relief can be
granted. Mr. Ibscher asserts that Warden Sternes has violated his
Eighth Amendment rights by failing to render proper medical
treatment. Although only Dr. Mesrobian is a physician, it is
well-settled that a state official's deliberate indifference to
an inmate's serious medical condition violates the Eighth
Amendment, whether the defendant is a health care provider or
correctional employee. Farmer v. Brennan, 511 U.S. 825, 837
(1994); Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000).
Deliberate indifference has both an objective and subjective
element: the inmate must have an objectively serious medical
condition, and the defendant must be subjectively aware of and
consciously disregard a risk to the inmate's health or safety.
Farmer, 511 U.S. at 837, Sherrod, 223 F.3d at 610. Mr. Ibscher claims that from October 27, 1999 to January 17,
2001 (the day of his emergency surgery) he complained to Warden
Sternes regarding his excruciating pain and lack of medical
treatment for that pain. While Warden Sternes argues that he was
not deliberately indifferent to Mr. Ibscher's medical condition,
Warden Sternes' arguments do not allow the dismissal of the
claim. Federal notice pleading, as opposed to fact pleading,
requires only that the plaintiff "set out in her complaint a
short and plain statement of the claim that will provide the
defendant with fair notice of the claim." Scott, 195 F.3d at
951. Therefore, because Mr. Ibscher's Amended Complaint alleges
that Warden Sternes was aware of his medical condition and failed
to address it, which ultimately led to his emergency surgery,
under the liberal federal notice pleading rules, this is a
sufficient allegation of deliberate indifference to support Mr.
Ibscher's claim. See Bond v. Aguinaldo, No 02 C 5357, 2003 WL
21272432, at * 2 (N.D. Ill. May 30, 2003).
Even assuming Mr. Ibscher's Amended Complaint states a claim
upon which relief can be granted, Warden Sternes argues that his
Motion to Dismiss should be granted because: 1) Mr. Ibscher filed
his original complaint after the two year statute of limitations;
and 2) Mr. Ibscher failed to exhaust all ...