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Brown v. Ghosh

September 28, 2010


The opinion of the court was delivered by: Judge Joan H. Lefkow


Michael Brown filed his first amended complaint against Dr. Partha Ghosh, Dr. Constantine Peters, Dr. Liping Zhang, Margaret Thompson, Terry McCann, Anthony Ramos, Michael Randle, and Wexford Health Sources, Inc. ("Wexford Health") (collectively, the "defendants").*fn1 The complaint arises from defendants' alleged deliberate indifference to Brown's requests for certain medical treatment for prostate cancer while he was incarcerated. Before the court are defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Dr. Peters's motion to dismiss [53] is denied; Drs. Ghosh and Zhang and Wexford Health's motion to dismiss [48] is denied; and Randle, McCann, Ramos, and Thompson's motion to dismiss [60] is granted in part and denied in part.


The following facts are taken from the first amended complaint and are presumed true for the purpose of resolving the pending motions. Brown was incarcerated at the Stateville Correctional Center ("Stateville") in Joliet, Illinois, from August 2007 to August 2009. He was initially processed at the Northern Reception Classification Center and held in "receiving" (presumably at the Northern Reception Classification Center) from August 2007 to July 23, 2008. Brown was then transferred to the main Stateville facility and he remained there until his release on August 11, 2009. Brown suffers from advanced prostate cancer and urinary retention, for which he was being treated prior to his incarceration at Stateville. During Brown's incarceration, the cancer spread to other parts of Brown's body. Brown asserts that the cancer would not have spread if he had received radiation treatment that he requested and which was recommended by Dr. Peters at the beginning of his incarceration.

During the period of Brown's incarceration, Dr. Ghosh was the Medical Director at Stateville, Drs. Peters and Zhang were doctors at Stateville, and Dr. Peters also served as the Medical Director at the Northern Reception Classification Center. Ramos, who is currently the acting warden at Stateville, was acting warden during a portion of Brown's incarceration. McCann was also a warden during a portion of Brown's incarceration. Thompson served as Stateville's Grievance Officer. Randle is the director of the Illinois Department of Corrections. Wexford Health is a Pennsylvania corporation.

I. Brown's Requests for Radiation Treatment and Prescription Drugs While in Receiving When Brown was first processed at the Northern Reception Classification Center, he gave Dr. Peters a copy of a medical history that showed that he was currently receiving treatment for high grade prostate cancer and urinary retention. Brown told Dr. Peters that his urologist had recommended that he receive external beam radiation treatment, but that as of the date of his incarceration he had not received the treatment because he had not been able to pay for it. Dr. Peters recommended that Brown receive radiation treatment. Dr. Peters also asked Brown where he would like to have the treatment done. Brown requested to stay in receiving and receive treatment at the University of Illinois at Chicago ("UIC").

Between September 2007 and July 2008, Brown went to UIC to consult with urologists and oncologists. He never received radiation treatment. Brown asserts that he was denied radiation treatment for two reasons: first, Wexford Health pressured the defendants to deny medical treatment due to budget constraints, and second, the defendants believed Brown would die shortly or be paroled in August 2009.

On July 18, 2008, Brown's medical care providers at UIC told him that the cancer was no longer in remission and that he had tumors in his lower back and pelvis. Dr. Peace, a physician at UIC, gave Brown two prescriptions for medication to strengthen his bones in preparation for chemotherapy. When Brown returned to "receiving," the health care personnel at Stateville denied knowledge of the prescriptions and he did not receive the prescribed medication. In August 2008, Brown filed an emergency grievance, which was denied in February 2009.

II. Requests to Transfer Brown to Other Correctional Facilities

While Brown was in receiving, Dr. Peters recommended that Brown be transferred to Dixon Correctional Center because it specializes in the health needs of prisoners. The Illinois Department of Corrections denied the transfer.

After Brown had moved to the main facility at Stateville, he requested to be transferred to the Sheridan Correctional Facility, which is a minimum security facility, in order to facilitate his medical care. This request was also denied. Brown asserts that the denial of his request to transfer "exacerbated the problem of his denial of reasonable health care" because it was difficult to obtain necessary medical care at Stateville, which is a maximum security facility.

III. Brown's Medical Care at Stateville's Main Facility

During Brown's incarceration at the main Stateville facility, Dr. Zhang allegedly refused to provide proper medical treatment to Brown. Dr. Zhang and Thompson had an "ongoing practice of denying prisoners medical care," and as part of this practice they falsely asserted that Brown himself had refused necessary medical treatment for prostate cancer.

Also during this time, Warden Ramos ignored a permit that Brown had obtained from Dr. Ghosh that stated that he could carry a towel to wipe off sweat that is caused by hot flashes that are related to Brown's illness. Ramos physically took Brown's towel away from him, and in pulling the towel away Ramos caused Brown to fall and injure his back because he was using crutches at the time. Brown filed an emergency grievance regarding the towel incident in July 2009. Brown's complaint states that his grievance was resolved "at an institutional level" in August 2009 and that he was advised to submit a grievance ...

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