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Diaz v. Hart

March 8, 2010


The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Court Judge


Judge Joan H. Lefkow

Mario Diaz filed a third amended complaint against Avery Hart, Eileen Couture, Kevin Sims,*fn1 Michael Puisis, Partha Ghosh, Arthur Funk, Thomas Dart, Terry McCann, Jorge Prieto, and Richard Keen (collectively but excluding Prieto,*fn2 "defendants") in their individual and official capacities and against Roger Walker*fn3 solely in his official capacity under 42 U.S.C § 1983 for deprivation of due process under the Fourteenth Amendment.*fn4 The complaint arises from defendants' alleged deliberate indifference to Diaz's request for clavicle surgery while imprisoned. Before the court are defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).*fn5 For the following reasons, Dart, Hart, Couture, Keen, and Sims's motion to dismiss [#77] is granted in part and denied in part; Puisis and McCann's motion to dismiss [#79] is granted in part and denied in part; and Ghosh and Funk's motion to dismiss [#81] is denied.


The following facts are taken from the Third Amended Complaint and are presumed true for the purpose of resolving the pending motions. Diaz, a 51-year-old man, alleges that defendants failed to provide medical treatment for an injury he sustained while detained in the Cook County Jail ("the Jail"). Third Am. Compl. ¶ 17. Avery Hart was the chief medical officer for Cermak Health Services ("Cermak") at the Jail beginning in July 2008. Id. ¶ 6. Eileen Couture was the chief medical officer for Cermak from July 2007 until July 2008. Id. ¶ 7. Partha Ghosh was the medical director for Stateville Correctional Center ("Stateville") and Northern Reception and Classification Center ("NRC"). Id. ¶ 9. Michael Puisis was the medical director for the Illinois Department of Corrections ("IDOC"). Id. ¶ 10. Arthur Funk was the Illinois Regional Director for Wexford Health Services ("Wexford"), the medical care contractor for IDOC and was responsible for providing medical care services for detainees at Stateville and NRC. Id. ¶ 11. Thomas Dart was the Sheriff of Cook County. Id. ¶ 12. Terry McCann was the Warden of Stateville and NRC. Id. ¶ 13. Jorge Prieto, a physician, examined Diaz at John H. Stroger Jr. Hospital ("Stroger") and denied his request for surgery. Id. ¶ 14. Richard Keen was the head of surgery at Stroger. Id. ¶ 15. Kevin Sims worked as a physician's assistant at the Jail and had authority to prescribe medication for detainees. Id. ¶ 8. Diaz alleges that all the above-mentioned defendants, except Sims, could have authorized surgery but did not. Id. ¶¶ 6-15.

In October 2007, Diaz stepped into a pothole at the Jail, fell to the ground, and was injured. Id. ¶ 21. Diaz was sent to Cermak. Id. ¶ 22. There, a physician's assistant (not a defendant) told Diaz that his collarbone was dislocated, unsuccessfully attempted to move the bone back into place, and sent Diaz back to the Jail without stating whether surgery would be necessary. Id. ¶ 23. A few days later, Diaz was sent to NRC,*fn6 where intake physicians told him "they would see what they could do" about his shoulder. Id. ¶ 24. From October 2007 to August 2008 as he was transferred between the Jail and NRC, Diaz had at least six additional exams in which physicians (not defendants) observed Diaz's collarbone and stated it required surgery.

Id. ¶ 25.

While at NRC, Diaz repeatedly requested grievance forms to demand surgery, but corrections officers in charge never provided him with the forms. Id. ¶ 27. In contrast, while at the Jail, Diaz did have access to grievance forms and filled out at least ten grievances between January and June 2008. Id. ¶ 28. Six months after filing his initial grievance, Diaz received a response to all his grievances, stating that the issue would be referred to Cermak. Id. ¶ 29. On August 21, 2008, Diaz had another intake exam at Cermak where x-rays were taken, and he was yet again informed that surgery was necessary. Id. ¶ 31.

No action having been taken, Diaz filed grievances on September 17 and September 23, 2008, requesting surgery and compensation for the pain and suffering he endured. Id. ¶ 32. The grievances were referred to the division physician, alleged to be Sims but whom defendants identify as a physician's assistant. Id. ¶ 34; Defs. Dart, Hart, Couture, Keen and Sims's Mot. at 1 n.1.Diaz was sent to Stroger on November 3 and again on November 17, 2008. Id. ¶ 36. While at Stroger, Diaz was given an appointment to return for surgery, but the appointment was later canceled. Id. ¶¶ 36-37. Diaz filed a grievance asking for information on why the surgery was canceled. Id. ¶¶ 38. He did not meet with Sims, however, until January 30, 2009. Id. ¶ 40. During this meeting, Sims failed to refill Diaz's prescription for pain medication. Id. ¶ 40.

After filing suit, another appointment was made for Diaz at Stroger on April 15, 2009.

Id. ¶¶ 41-42. At that appointment, Dr. Prieto concluded that Diaz did not need surgery. Id. ¶ 42.On May 4, 2009, Diaz met with yet another doctor at Stroger who concluded that Diaz needed surgery. Id. ¶ 43.Within fifteen minutes of the examination, however, a nurse told Diaz that Dr. Keen had already concluded that Diaz had "waited too long" to have surgery. Id. Consequently, Diaz was sent back to the jail without surgery being scheduled. Id. At the time the Third Amended Complaint was filed, Diaz did not have an appointment to see an orthopedist nor a scheduled date for surgery. Id. ¶ 44.


A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). In order to survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of the claim's basis, but must also establish that the requested relief is plausible on its ...

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