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Merritt v. Ghosh

July 29, 2009


The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Judge Rebecca R. Pallmeyer


Plaintiff, Kelvin Merritt, filed suit, pro se, alleging that Defendants, medical providers at various institutions, were deliberately indifferent to his serious medical needs. Defendants, Drs. Ghosh, Lofton and Ngu, have moved for summary judgment, arguing that Plaintiff's claims must be dismissed due to his failure to exhaust administrative remedies, are barred by the statute of limitations, or fail on their merits. For the reasons stated in this order, the motion for summary judgment is granted. Furthermore, the case is dismissed as to Defendant Dr. Tilden on timeliness grounds.

Legal Standard

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008). Rule 56(c) requires that the court grant a motion for summary judgment if, after adequate time for discovery, "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Johnson v. Doughty, 433 F.3d 1001, 1009-10 (7th Cir. 2006) (citing Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003).)

Defendants served Plaintiff with the appropriate "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992); Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). The Notice explained that under this court's rules, a plaintiff opposing summary judgment must file a statement containing "numbered paragraphs responding to each paragraph in the defendants' statement of facts." Local Rule 56.2 Notice to Pro Se Litigant [51]. If Plaintiff were to disagree with Defendants' factual submissions, the Notice explained, Plaintiff should "explain how and why you disagree" and "explain how the documents or declarations you are submitting support your version of the facts." Id. The Notice warned that "[i]f you do not provide the Court with evidence that shows that there is a dispute about the facts, the judge will be required to assume that the defendant's factual contentions are true and, if the defendant is also correct about the law, your case will be dismissed." Id. at 2. Finally, the Notice invited Plaintiff to "offer the Court a list of facts that you believe are in dispute and require a trial to decide," supporting that list with "documents or declarations" and an explanation of "how your documents or declarations support your position." Id.

Although pro se plaintiffs are entitled to some leniency, compliance with procedural rules is required. Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) ("[R]ules apply to uncounseled litigants and must be enforced."); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994); Fischer v. Ameritech, No. 98 C 7470, 2002 WL 1949726, *4 (N.D. Ill. Aug. 23, 2002)(Pallmeyer, J.). Despite being given this notice, Plaintiff's response to Defendants' motion for summary judgment does not identify which of the numbered paragraphs are responses to the Defendants' proposed statement of facts, which are argument, and which are Plaintiff's proposed statements of fact. The document also contains a copy of the complaint and 36 pages of medical records, but Plaintiff's response does not cite to any specific document. Because Plaintiff is proceeding pro se, the court will consider the factual assertions he makes in his brief, but only to the extent that Plaintiff could properly testify about the matters asserted at trial-that is, only with respect to those facts within Plaintiff's personal knowledge. See FED. R. EVID. 602. The court notes, further, that information in Plaintiff's medical records (many of which were submitted both by Defendants and by Plaintiff) will be deemed accurate in the absence of any contrary evidence.

Undisputed Facts

Plaintiff is an inmate in the Illinois Department of Corrections, currently held at the Hill Correctional Center. (Pl.'s Dep. at 1; Defs.' Ex. A.) At times relevant to his claims, Defendant, Dr. Partha Ghosh, was the Medical Director at Stateville Correctional Center ("Stateville"); Defendant, Dr. Mary Lofton, was the Medical Director at Lawrence Correctional Center ("Lawrence"); and Defendant, Dr. Lawrence Ngu, was the Medical Director at Dixon Correctional Center. (Pl.'s Comp.; Defs.' Ex. B.)

Plaintiff was transferred to Stateville in 2003. (Pl.'s Dep. at 4; Defs.' Ex. A.) While at Stateville, Plaintiff was treated by Dr. James Bizzel in the ophthalmology clinic for glaucoma and for chronic sinusitis on the following occasions: March 8, 2004; April 29, 2004; May 3, 2004; June 18, 2004; June 22, 2004; July 15, 2004; December 9, 2004; he also received medical treatment on June 21, 2005 and August 3, 2005. (Defs. Ex. D.) On November 3, 2004, Dr. Ghosh prescribed Ciproflaxacin and a nasal spray. (Nov. 3, 2004, Progress Note; Defs.' Ex. E.) On December 9, 2004, Plaintiff was again treated by Dr. Ghosh for nasal sinusitis. Plaintiff was prescribed a moisturizing cream, Levaquin, and Nasonex. (Dec. 9, 2004, Progress Note; Defs.' Ex. E.)

Plaintiff was also treated by Dr. Tilden while at Stateville. Dr. Tilden first treated Plaintiff in January or February of 2005, at which time he prescribed Afrin. (Pl.'s Dep. at 8; Defs. Ex. A.) After being treated by Dr. Tilden, Plaintiff suffered, or continued to suffer, from a sinus infection for which he was treated by Dr. Bizzel and by Dr. Ghosh. At some point, Dr. Ghosh referred Plaintiff to a visiting ear, nose, and throat specialist. (Id. at 10-11.) The last time Plaintiff received treatment from Dr. Ghosh was in March or April of 2005. (Id. at 14.)

On August 8, 2005, Plaintiff received a CT scan. On August 20 or 22, 2005, Plaintiff was transferred to Lawrence. (Pl.'s Dep. at 15; Defs.' Ex. A.) On September 16, 2005, Plaintiff was treated by an optometrist at the Marion Eye Clinic for eye pain resulting from injuries, failed corneal transplants, and glaucoma. (Sept. 16, 2005, Transfer Summary; Defs.' Ex. E.) On September 29, 2005, Plaintiff advised a registered nurse at Lawrence that he did not want any further examination or treatment until he received the results from the CT scan, which had been ordered but had not yet arrived. (Sept. 29, 2005, Progress Note; Defs.' Ex. E.)

On October 5, 2005, Dr. Lofton treated Plaintiff for chronic sinusitis and nasal polyps. Dr. Lofton prescribed Beconase (a corticosteroid) to be used until January 31, 2006. (Oct. 5, 2005, Progress Note; Defs.' Ex. E.) Plaintiff received instructions on the medication's use and was scheduled for follow-up appointments on October 24, 2005 and again on November 14, 2005. (Oct. 24, 2005, Progress Note; Defs.' Ex. E). When she saw him on November 14, 2005, Dr. Lofton advised him to continue using the Beconase prescribed, in addition to a saline nasal spray. (Nov. 14, 2005, Progress Note; Defs. Ex. E.) Plaintiff was treated again on December 29, 2005, at which time he received prescriptions for Cipro and Sudafed and the doctor noted a request for referral to an ear, nose and throat specialist. (Dec. 29, 2005, Progress Note; Defs.' Ex. E.) Plaintiff confirmed that the Sudafed did provide relief. (Pl.'s Dep. at 22; Defs. Ex A.)

On January 17, 2006, Dr. Lofton saw Plaintiff and conferred with him regarding Plaintiff's refusal to go to an appointment with an eye doctor because he was angry with security. (Jan. 17, 2006, Progress Note; Defs. Ex E.) When Plaintiff saw Dr. Lofton again one month later, Dr. Lofton's notes show she and Plaintiff had a long discussion in which the doctor explained that nasal polyps are a result of allergies, not of cancer. (Feb. 21, 2006, Progress Note; Defs.' Ex. E.) Throughout his incarceration at Lawrence, Plaintiff ...

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