United States District Court, N.D. Illinois, Western Division
June 15, 2004.
HEINZ HENRY IBSCHER, Plaintiff,
WARDEN JERRY L. STERNES, an individual, and DR. ANTREAS MESROBIAN, an individual, Defendants.
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.
Standard of Review
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 his administrative
remedies, and 3) state and qualified immunity bars this suit.
This court will first address the statute of limitations
argument. Section 1983 does not itself contain a specific statute
of limitations. As a result of this, courts look to the law of
the state where the injury occurred to determine the statute of
limitations applicable for the claim. Wilson v. Garcia,
471 U.S. 261, 280 (1985). As this case arises in Illinois, the
Illinois statute of limitations for personal injuries, which is
two years, will apply. 735 ILCS 5/13-202. The two-year period
begins when Mr. Ibscher knows or should have known that his
constitutional rights were violated. See Cathedral of Joy
Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th
Cir), cert denied, 513 U.S. 872 (1994).
Warden Sternes argues that Mr. Ibscher has failed to provide
specific dates of alleged violations, and while Mr. Ibscher does
provide a time period spanning from November 1999 to January 17,
2001, the date of his surgery, ultimately Mr. Ibscher misses the
two-year statute of limitations period for any claim taking place
before "February 7, 2001." Mr. Ibscher, on the other hand, argues
that the event triggering the limitation period is the date of
the surgery January 17, 2001.
While Warden Sternes is correct that Mr. Ibscher does not
provide specific dates of the alleged violations, such
information is not necessary at this stage of the litigation. It
is sufficient enough for a motion to dismiss to provide
non-specific dates, as long as some of those dates fall within
the two-year statute of limitations. Mr. Ibscher has alleged that
he notified all the Defendants about his need for medical
attention between November 1999 and January 17, 2001. Because Mr.
Ibscher filed his original Complaint on February 7, 2002, any
statements made by Mr. Ibscher to the Defendants about his
medical condition after February 7, 2000 are actionable.
Therefore, because Mr. Ibscher is not required to provide
specific dates at this time, the Motion to Dismiss is
Warden Sternes next argues that Mr. Ibscher's Fourth Amended
Complaint should be dismissed because Mr. Ibscher failed to
exhaust his administrative remedies. The Prison Litigation Reform
Act ("PLRA") of 1995 provides, in pertinent part: "No action
shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted. . . ." 42 U.S.C. § 1997e(a); Massey v. Helman,
259 F.3d 641, 645 (7th Cir. 2001). Additionally, "if a prison has an internal administrative
grievance system through which a prisoner can seek to correct a
problem, then the prisoner must utilize that administrative
system before filing a claim [in court]." Massey v. Helman,
196 F.3d 727, 733 (7th Cir. 1999), cert. denied, 532 U.S. 1065
In the instant case, it appears that Mr. Ibscher went as far as
he could in the prison's internal administrative grievance
system. After filing numerous grievances, having those grievances
denied, and appealing those grievances, Mr. Ibscher received a
letter from the Illinois Department of Corrections informing him
that Mr. Ibscher's grievances will be "addressed without a formal
hearing," and that in the opinion of the Administrative Review
Board, "[b]ased on a total review of all available information, . . .
the issue was appropriately addressed by the institutional
administration." (See notice from Administrative Review Board,
attached as an unmarked exhibit to the original Complaint.) No
other information, in terms of appealing the decision, was
provided. Mr. Ibscher has more than fulfilled the purpose of
proceeding initially at the administrative level to provide the
governmental agency sufficient notice to investigate the incident
and give correctional officials the opportunity to rectify the
perceived problem before the courts become involved. See Palay
v. U.S., 125 F. Supp.2d 855, 859 (N.D. Ill. 2000). Therefore,
this court finds Mr. Ibscher did exhaust his administrative
remedies before filing the instant action.
Lastly, Warden Sternes argues that qualified immunity bar Mr.
Ibscher's suit altogether. In determining whether a State
employee is protected by qualified immunity, this court must
determine whether Mr. Ibscher has alleged a constitutional
deprivation, and then determine whether the constitutional right
was clearly established at the time of the violation. Spiegel v.
Cortese, 196 F.3d 717, 723 (7th Cir. 1999). Mr. Ibscher claims
he notified Warden Sternes about his medical condition. Mr. Ibscher was thus exercising his Eighth Amendment
right to be free from the infliction of unnecessary and wanton
infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
The constitutional right of a prisoner to be free from the
infliction of unnecessary and wanton infliction of pain was
clearly established at the time Mr. Ibscher complained about his
medical condition to Warden Sternes. Therefore, because Mr.
Ibscher has alleged an Eighth Amendment violation, and that
constitutional right was clearly established at the time of the
violations, Warden Sternes' Motion to Dismiss based on qualified
immunity is denied.
For the above stated reasons, Warden Sternes' Motion to Dismiss
is denied. Warden Sternes is ordered to answer or otherwise plead
within twenty-one days of the date of this Order.