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Case Title Glenn Verser v. Partha Ghosh

December 3, 2010

CASE TITLE GLENN VERSER
v.
PARTHA GHOSH



The opinion of the court was delivered by: Magistrate Judge Elaine E.Bucklo

Name of Assigned Judge or

Sitting Judge if Other than Assigned Judge

DATE

N-72074

DOCKET ENTRY TEXT:

The court denies the motions to dismiss filed by Defendants Parham, Pito, and Hunter [67] and by Dr. Tamer Atassi [90]. Within 30 days of the date of this order, these defendants must answer the second amended complaint or otherwise plead. Plaintiff's motion for the entry of default against Dr. Ben Jasper Bryant and Nurse Tonya [97] will be addressed at the court's next status hearing. Plaintiff's petition to file an amended complaint [102] is denied.

O [For further details see text below.] Docketing to mail notices.

STATEMENT

By second amended complaint, Plaintiff Glenn Verser, a Stateville inmate, asserts the following. In April 2009, he received a colonoscopy at the University of Illinois at Chicago Hospital. One or more polyps were removed during the procedure. Following Plaintiff's return to Stateville, he began hemorrhaging and was taken to the emergency room of another hospital, where he remained for several days and was given several units of blood. Plaintiff's suit names numerous Stateville officers and doctors, as well as private physicians with respect to the medical care he received during his hospital stays. The court allowed the second amended complaint to proceed against most of the defendants named in the second amended complaint. Currently before the court are two motions to dismiss: one filed by Dr. Tamer Atassi, a gastroenterologist at Provena Medical Center, and another filed by Stateville Officers Parham, Pito, and Hunter. Plaintiff has filed responses to both motions. For the following reasons, the court denies both motions to dismiss.

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. 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 F.3d 882, 888 (7th Cir. 2006).

STATEMENT

With respect to the defendants who filed the current motions to dismiss, Plaintiff's Second Amended Complaint alleges the following. On April 9, 2009, he returned to Stateville, one day following the removal of polyps during a colonospcopy. He was placed in his cell at Stateville within 24 hours of his return. At approximately at 2 p.m. on April 9th, he began "hemorrhaging profusely." (R. 57, Second Amended Compl., ¶ 16.) Plaintiff began calling for help, and Officer Parham responded fifteen minutes later. Parham stated that he had to screen Plaintiff for a medical emergency. Parham allegedly refused to radio for assistance after Plaintiff told him that he was bleeding badly. (Id.) Shortly thereafter, Sergeant Hunter approached Plaintiff's cell and requested to know the medical emergency. "After approximately 15 minutes of arguing with Ms. Hunter, she placed Verser in a downstair[s] waiting cell (bull-pen) for approximately 30 more minutes." (Id., ¶ 17.) Plaintiff states that, during this time, he told Officer Pito that he was bleeding to death. Pito allegedly went into his office and ignored Plaintiff's complaints. (Id. ¶ 18.) Plaintiff arrived at Stateville's emergency room at 3:10 p.m., an hour and ten minutes after he began bleeding. (Id., ¶ 19.)

Plaintiff was ultimately taken to Provena Medical Center emergency room. The emergency room doctor allegedly allowed Plaintiff to bleed for four hours, and the gastroenterologists at Provena (Drs. Atassi and Hussein), had ordered that he be discharged despite his low blood level. (Id. ¶ 33.) Plaintiff began hemorrhaging again just before his discharge and subsequently received two units of blood. (Id., ¶ 34.)

Defendants Parharm, Hunter, and Pito argue that Plaintiff has pleaded himself out of court because his allegations demonstrate that they did not act with deliberate indifference. Parham contends that, according to the second amended complaint, he responded to Plaintiff's calls for help, did not ignore Plaintiff's need for medical attention, and sought to screen the nature of Plaintiff's emergency. (R. 68, Motion to Dismiss, 4.) Parham suggests that Plaintiff's allegation that Hunter arrived within 15 minutes demonstrates that Parham did not ignore Plaintiff's complaints. (Id., 4-5.) Hunter contends that, according to Plaintiff's allegations, the only claim against her is at most a 45-minute delay with getting Plaintiff to the prison's emergency room. (Id., 5.) Pito contends that the only allegation against him is that he refused Plaintiff's requests for immediate medical attention after Hunter had placed Plaintiff in the holding cell. Pito ...


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