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Navejar v. Ghosh

May 25, 2010

EDUARDO NAVEJAR (R-34701), PLAINTIFF,
v.
DR. PARTHA GHOSH AND DR. LIPING ZHANG, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia Kendall

MEMORANDUM OPINION AND ORDER

Eduardo Navejar ("Plaintiff"), currently incarcerated at the Menard Correctional Center, brought this 42 U.S.C. § 1983 action against two doctors associated with the Stateville Correctional Center. Plaintiff alleges that Dr. Liping Zhang and Dr. Partha Ghosh acted with deliberate indifference regarding Plaintiff's back condition while he was incarcerated at Stateville in 2008. The Defendants have separately filed motions to dismiss, each contending that Plaintiff fails to state a claim, and have also jointly moved for summary judgment asserting that Plaintiff failed to exhaust his administrative remedies. During the summary judgment briefing, Defendants also moved to strike portions of Plaintiff's Rule 56.1 statements. For the following reasons, the Court grants the motions to dismiss and denies as moot the motions for summary judgment and to strike Plaintiff's Rule 56.1 responses.

I. Facts

Plaintiff attached a number of medical and grievance records to his Complaint. Those records and his Complaint allege that he is currently incarcerated at the Menard Correctional Center, that prior to Menard, he was incarcerated at the Pontiac Correctional Center; before Pontiac, he was incarcerated at the Stateville Correctional Center from November 2004 to December 2008; and before November 2004, he was housed at the Cook County Jail. (R. 25, Defs.' Rule 56.1 Statement, ¶¶ 1, 5; R. 36, Pl.'s Rule 56.1 Statement, ¶¶ 1, 5.) A 2002 report of a medical examination of Plaintiff at Cermak Health Services indicated that he had degenerative disc disease in his lower lumbar area. (R. 1, Medical Report dated 6/28/02 attached to Complaint, 6.) Records from Cermak Health Services (mainly Progress Notes) show several complaints of back pain from Plaintiff in 2002, 2003, and 2004. (R. 1-1, Cermak Progress Notes attached to Complaint, 18-23.)

Progress Notes from Stateville reflect notations regarding Plaintiff's back began in April 2008. On April 23, 2008, a physician's assistant noted that Plaintiff was having back pains and had indicated having back pains for years. The physician's assistant asked Plaintiff why he had not reported such pain since his incarceration at Stateville in November 2004. Plaintiff responded that he had recently received a copy of the 2002 report stating that he had degenerative disc disease and that he now wanted an MRI or CT scan. (R. 1-1, Stateville Progress Notes attached to Complaint, 24.) The notes further state that an examination by the physician's assistant revealed "gait normal without disturbance, [Plaintiff] appears to be in no acute distress" and no spasms to the C-spine, T-spine, and L-spine regions. (Id. at 25.) X-rays of the T-spine and L-spine areas were ordered. (Id. at 33.) Plaintiff received Tylenol and an analgesic balm for pain following his April 23, 2008, examination. (R. 1-1, Prescription Order, 30.)

On May 10, 2008, Dr. Zhang examined Plaintiff and discussed the results of the x-rays, which were normal. (R. 1-1, Stateville Progress Notes, 26, 33.) Dr. Zhang noted that Plaintiff complained of back pains, that there was "no local tenderness, no edema, no bony deformity, left shoulder is lower with Scoliosis seen. X-ray of T-spine, L-spine both negative. Gait stable. A chronic back pain." (Id.) Dr. Zhang prescribed muscle relaxers and advised Plaintiff to do back strengthening exercises and use hot compresses. (Id.) Also on May 10, 2008, apparently after the visit with Dr. Zhang, Plaintiff wrote a letter to Dr. Ghosh, stating that Dr. Zhang was offended when Plaintiff asked her whether she was a doctor or a physician's assistant. Plaintiff stated that the medications he was taking (at that time Tylenol and the analgesic balm) were not working. (R. 1, Complaint, 27.) On May 11, 2008, Plaintiff sent a letter to Dr. Zhang, stating that he hoped that he had not offended her when he asked her if she was a doctor or when he questioned her about whether her prescribed treatment (muscle relaxers, hot baths, and stretching exercises) would work. Plaintiff stated that he did not have a chance to tell her during their visit that he wanted to do the prescribed treatment. (Id. at 28.) Prescription records show that Plaintiff received Robaxin (a muscle relaxer) per Dr. Zhang's order on May 10, 2008. (R. 1-1, Prescription Order attached to Complaint, 31.)

Plaintiff was again examined by Dr. Zhang on August 30, 2008. The Progress Notes entry of that date states that Plaintiff complained of back pain radiating to his left testicle. The notes state that there was no acute damage to Plaintiff's back, that his gait was steady, and that Dr. Zhang sought to rule out kidney stones. (R. 1-1, Progress Notes attached to Complaint, 28.) She ordered more x-rays of the lumber spine, specifying both the presence of back pain and possible kidney stones. The x-rays were negative. (Id. at 34.)

Prescription records from Stateville show that Plaintiff was prescribed a muscle relaxer (Robaxin) and pain medication (Motrin and Tylenol) from May 2008 through October 2008. (Id. at 29-32.) Plaintiff was transferred from Stateville in December 2008.

The record contains two grievances from Plaintiff while he was at Stateville. The first grievance is dated June 18, 2008, and states that Dr. Zhang was incorrect when she told Plaintiff that her examination and x-rays revealed no degenerative disc disease. (R. 1, 6/18/08 Grievance attached to Complaint, 17-18.) Plaintiff's next grievance is dated August 18, 2008, and states that he had not had a doctor's visit since May10, 2008, that he continued to have back pains, and that he had made several requests for medical attention to a nurse in his prison unit. (R. 1, 8/18/08 Grievance attached to Complaint, 19.) Both grievances were referred by the prison counselor to the health care unit with a note that the counselor could not respond to the grievances. (Id. at 17-19.) The record contains no responses by the Health Care Unit to the grievances. On February 9, 2009, after he was transferred out of Stateville, Plaintiff submitted another grievance stating that he never received a response from the Health Care Unit. (R. 1-1, Copy of 2/9/09 Grievance, 8.) A March 16, 2009, letter from a Stateville counselor states that Plaintiff's June and August 2008 grievances were submitted to the Health Care Unit, and that there is a long wait for responses. (Id. at 14.) The affidavit from Stateville Chairperson of the Office of Inmate Issues Sherry Benton indicates that the Administrative Review Board ("ARB") did not receive Plaintiff's June 18 and August 18, 2008, grievances until February 3, 2009, when Plaintiff submitted them to the ARB. (R. 25-2, Defs.' Rule 56.1 Statement, Sherry Benton's Aff., 3.)

III. Motion to Dismiss

Dr. Ghosh and Dr. Zhang have filed separate motions to dismiss. Dr. Ghosh argues that Plaintiff fails to state how Dr. Ghosh was involved with the alleged inadequate treatment of Plaintiff's back pains. (R. 15.) Dr. Zhang contends that Plaintiff's complaint and its attachments demonstrate that Plaintiff does not allege deliberate indifference, but at most negligence or a disagreement about Dr. Zhang's treatment. (R. 17.) Both Defendants are correct.

a. Standard of Review

When considering a motion to dismiss, this court assumes to be true all well-pleaded allegations and views the alleged facts, as well as any inferences reasonably drawn therefrom, in a light most favorable to the plaintiff. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits of its claims, or determine a plaintiff's ability to succeed on his claims. Weiler v. Household Finance Corp., 101 F.3d 519, 524 n.1 (7th Cir. 1996). Under the notice pleading requirement, a complaint need only state a federal claim and provide the defendants with sufficient notice of the claim, including the grounds upon which the claim rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint, however, must at least "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 -77 (7th Cir. 2007). A complaint must do more than recite the elements of a cause of action, and a court need not accept mere labels and legal conclusions as factual allegations. Bell Atlantic, 550 U.S. at 555. Nor must a court presume facts not alleged. Id. Additionally, if a plaintiff pleads facts demonstrating that he has no claim, a court may dismiss the complaint. McCready v. eBay, Inc., 453 ...


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