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IBSCHER v. STERNES

June 15, 2004.

HEINZ HENRY IBSCHER, Plaintiff,
v.
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

Background

  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 Correctional Center.

  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).

  Discussion

  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 ...


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