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Tate v. McCann

June 21, 2010

CARL TATE, PLAINTIFF,
v.
TERRY L. MCCANN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Carl Tate filed this action pursuant to 42 U.S.C. § 1983 against Warden Terry L. McCann, in his official capacity as Warden of Stateville Correctional Center, and various employees of Stateville. Plaintiff alleges that Defendants failed to protect him from assaults by other inmates, and failed to provide adequate medical care following the assaults, in violation of the Eighth and Fourteenth Amendments. Defendants Roger E. Walker ("Walker"), Terry McCann ("McCann"), Karen Rabideau ("Rabideau"), Ronald Meek ("Meek"), and Venita Wright ("Wright") filed a motion to dismiss, which the Court denied on January 26, 2010. Defendant Doctor Parthasarathi Ghosh moves to dismiss [67] Counts IV and IX. For the reasons stated below, the Court grants Defendant Ghosh's motion to dismiss [67].

I. Background*fn1

A. Factual

Tate is an inmate housed at the Pinckneyville Correctional Center. Tate was housed at the Stateville Correctional Center ("Stateville") during the events giving rise to this lawsuit.

Compl. ¶ 5.*fn2 McCann was the Warden of Stateville, Walker was the Director of the Illinois Department of Corrections, Meek was the Deputy Director of District 4 of the Illinois Department of Corrections, Rabideau was a placement officer at Stateville who approved all of Tate's cell assignments, and Wright was the Acting Health Care Administrator at Stateville. Defendant Ghosh was one of the treating physicians at Stateville, and Officer Leslie Turner, Sergeant Baldwin, and Lieutenant Buczkowski were officers at Stateville.

For a time at least, Tate was a member of a gang called the "Conservative Vice Lords" (the "CVL gang"). But in 1998, Tate was convicted of killing another CVL gang member-a member who outranked Tate. The result was an immediate death sentence that could be carried out by any member of the CVL gang, in addition to the punishment doled out by Illinois' criminal justice system. The Illinois Department of Corrections was aware of the threat: Tate's file shows that he was "flagged" by Internal Affairs as someone who should not be housed with members of the CVL gang. And in 2003, Tate was moved to a different facility because of the threat posed by CVL gang members housed at Stateville. But in 2006, the Illinois Department of Corrections sent Tate back to Stateville, a move which provoked a nearly immediate request by Tate (to Walker, the Illinois Department of Corrections Director) to be sent to another facility. Tate told Walker that his life would be in danger unless he was moved to a different facility, but Walker did not respond.

According to Tate, officials did more than merely not respond. Tate says that although "he was supposed to be in protective custody," he instead was placed in the general population where there were many members of the CVL gang. Compl. ¶ 28. And in October 2006, Tate was assigned to share a cell with a CVL gang member, Toussaint Daniels. Tate responded immediately by informing Sergeant Baldwin and Lieutenant Buczkowski that Tate was classified as being in protective custody and that Toussaint Daniels had threatened him. According to Tate, the officers told him that he should "stop snitching" and learn how to fight. Id. ¶¶ 30-31.

On roughly October 11, 2006, "just as he warned various prison officials" of the danger to his safety by writing emergency grievances and letters in an attempt to be moved away from Toussaint Daniels, Tate was assaulted by Daniels and suffered "several serious physical injuries." Compl. ¶¶ 32-33. After that encounter, Tate was assigned a new cellmate, Matthew Foley, an Aryan Brotherhood gang member. (The assignment was made even though Tate is African-American. See id. ¶ 5.) In late November and into December 2006, Tate filed grievances and also informed Sergeant Buczkowski that Matthew Foley was threatening him; Buczkowski's response (again) was to tell Tate that Tate should stop snitching and "should fight like a man." Id. ¶¶ 37-38. Also in December, Tate wrote to Walker, renewing his request for a transfer or to be put in a protected cell-the letter said that Matthew Foley was threatening Tate's life and that the officers at the facility (Turner, Baldwin, and Buczkowski) were ignoring the danger and refusing to help him. Id. ¶ 39.

On December 27, 2006, Tate spoke to Turner, an officer with Internal Affairs, again warning of the risk that Matthew Foley posed and elucidating the reasons for his concerns, including that Foley's fellow Aryan Brotherhood gang members were yelling through the gallery that Foley should kill him. Tate was told not only to "stop being a coward," he was told to stop complaining, and Turner took no steps to investigate the danger posed by Foley. Compl. ¶¶ 40-43. That same day, Tate was brutally assaulted by Matthew Foley. During the assault, Tate was knocked unconscious and had his property stolen. Foley subsequently admitted during an interview that he had assaulted Tate. Although Foley was moved out of the cell, Turner refused to document evidence of Tate's injuries. Tate filed another grievance after this series of events occurred (the complaint does not say whether the grievance related to the attack by Foley, the response by Turner, or both).

In January 2007, Tate wrote to Meek, the Deputy Director of the Illinois Department of Corrections, for help. Tate's effort to get into protective custody had been granted, but Tate was placed into a protective custody cell with another Aryan Brotherhood gang member. This other gang member, John Malinowski, was widely known as both a member of the Aryan Brotherhood and as a close friend of Matthew Foley. The same day that Tate was placed with Malinowski, Tate was assaulted by Malinowski. This led Tate to file another grievance, and no effort was made to separate Tate and Malinowski while the grievance was investigated. Apparently as part of that investigation, Malinowski met with Officer Turner. Malinowski requested a one-man cell and told Turner that he (Malinowski) would "beat, rape, or otherwise harm Plaintiff Tate or anyone else housed with him until he was celled alone." Id. ¶ 55-57. Malinowski repeated the threat to other officers. Still, Malinowski and Tate were not separated and Tate-seemingly falsely, although the complaint is not entirely clear-reported to prison officials that Malinowski made good on his threat and raped Tate. Turner still refused to move Malinowski. What is more, Turner, irked by Tate's grievances and letters to the governor, told Tate that he would "personally fight to have Mr. Tate's further requests for protective custody and transfer 'shut down.'" Id. ¶ 63.

Tate also alleges that he was denied medical care during the time period in which the assaults took place. After he was assaulted by Toussaint Daniels in October 2006, Tate filed a request to see the prison doctor for treatment of his injuries. Although Tate filed multiple such requests, he received no response (and no examination) during October, November, and December 2006. Tate was not examined until more than a week after the Foley assault in January 2007. According to Tate's allegations, both Dr. Ghosh, the Stateville Medical Director, and Vanessa Wright, the Acting Health Care Administrator who also received word that Tate's injuries were left untreated, were aware of Tate's requests for medical treatment but ignored the requests.

B. Procedural

On October 3, 2008, Tate filed his initial complaint, with the assistance of counsel. While incarcerated, Tate claims that he was unable to ascertain the identity of the medical staff members responsible for handling his requests for treatments; accordingly, those defendants were named as John and Jane Doe defendants. On December 23, 2008, Tate served written interrogatories on Defendants Walker and McCann, seeking the identity of all medical staff members at Stateville who treated Tate or met with him regarding his injuries during the relevant time period. On February 6, 2009, Tate received a response to the Interrogatories. Although the documents included a reference to Dr. Ghosh, Tate claims that the response was insufficient to allow Tate to identify Ghosh as one of the John Doe defendants. On March 12, 2009, Plaintiff's counsel received Tate's master file, and on May 14, 2009, counsel received Tate's medical records. ...


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