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Donald M. Jordan v. Frank Diaz

December 23, 2010

DONALD M. JORDAN, PLAINTIFF,
v.
FRANK DIAZ, WILLIAM THOMAS, SALVADOR GODINEZ, GILBERTO ROMERO, THOMAS DART, KEVIN SIMS, AND MORGHOOB KHAN, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Donald Jordan filed a two-count second amended complaint pursuant to 42 U.S.C. § 1983, alleging that he received constitutionally inadequate medical care for a finger injury that he suffered as a pretrial detainee at the Cook County Jail.*fn1 There are two groups of defendants: four Cook County Department of Corrections officials ("Sheriff defendants") and two health care professionals employed by Cermak Health Services of Cook County ("Cermak defendants"), the daily health care provider for all Cook County pretrial detainees.*fn2 The Sheriff defendants are: Cook County Sheriff Thomas Dart; Gilberto Romero, Assistant Executive Director of the Cook County Jail for a portion of plaintiff's incarceration; William Thomas, the Divisional Superintendent of Division 9 of the Cook County Jail during at least a portion of plaintiff's incarceration; and Salvador Godinez, the Executive Director of the Cook County Jail.

The Cermak defendants are Morghoob Khan, an attending physician, and Kevin Sims, a physician's assistant. All defendants are sued in their individual capacities, and defendants Dart and Thomas are also sued in their official capacities. Both groups of defendants have moved to dismiss Count II of the amended complaint (the only one in which they are named) pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons described below, the court denies defendants' motions.

FACTS*fn3

At all relevant times, plaintiff was a pretrial detainee at the Cook County Jail. In July 2006, plaintiff injured his left pinky finger during a riot. He reported his injury and was referred to Cermak. In October 2006, plaintiff was taken to Stroger Hospital, where doctors x-rayed his finger and prescribed physical therapy.

Plaintiff reinjured his left pinky finger in July 2007. The next month, doctors at Stroger x-rayed plaintiff's finger and determined that it had broken bones and torn ligaments. Cermak doctors performed their own x-ray and came to the same conclusion. The Cermak doctors prescribed pain medication for plaintiff's injury. Through August and September 2007, plaintiff attended biweekly doctor's appointments at Stroger, where the doctors eventually determined that he needed surgery to alleviate the pain and prevent further injury. The Cermak doctors agreed with this assessment.

In October 2007, plaintiff "was not allowed to go to Stroger for a scheduled check-up." Plaintiff filed a grievance, sent numerous requests to doctors at Cermak, and sent a letter to the then-Divisional Superintendent at the Cook County Jail. In December 2007, plaintiff received a response to his grievance, which stated that his case had been referred to Cermak. Plaintiff appealed but received no response.

Plaintiff's twice-monthly appointments at Stroger resumed a few months later and continued through May 2008. The Stroger doctors eventually scheduled plaintiff's surgery for May 20, 2008-but the day before the scheduled surgery, defendant Diaz cancelled it, explaining that he planned to charge plaintiff with another criminal offense and wanted that news to appear in the May 20 papers. Plaintiff responded that he had a severe injury requiring immediate surgery. Defendant Diaz countered that his injury was not that important and that the hospital would have to handle it at another time.

Plaintiff proceeded to file five more grievances with the Cook County Jail (in addition to the October 2007 grievance), as well as communicating directly with each Sheriff defendant by sending them letters and having his mother leave detailed phone messages for them. These communications described plaintiff's injuries, defendant Diaz's cancellation of the surgery, and, as time wore on, the various defendants' failures to respond. Plaintiff did not receive a response to any of these communications, except as otherwise indicated: ! a grievance filed on May 21, 2008; ! a grievance filed on June 21, 2008; ! a June 21, 2008, letter to defendant Thomas; ! June 23, June 25, and July 7, 2008, voicemails plaintiff's mother left for defendant Thomas; ! a grievance filed in December 2008 (specifically regarding plaintiff's failure to be sent back to Stroger for treatment); ! a June 3, 2009, letter to defendant Thomas (explaining that he was not receiving adequate medical care and that the doctors at Cermak were not attending to his medical needs);

! an August 13, 2009, letter to defendant Thomas (explaining that he had not been sent to Stroger since August 2008 and that he had filed several unsuccessful grievances, and again asking to be sent back to Stroger);*fn4 ! an August 18, 2009, letter to defendant Thomas; ! a grievance filed on August 18, 2009; ! a grievance filed on August 30, 2009;*fn5 ! an August 30, 2009, letter to defendant Romero; ! an August 30, 2009, voicemail plaintiff's mother left for defendant Romero; ! a September 8, 2009, letter to defendant Godinez; ! a September 8, 2009, voicemail plaintiff's mother left for defendant Godinez; ! a September 14, 2009, letter to defendant Dart; and ! a September 14, 2009, voicemail plaintiff's mother left for defendant Dart.

Plaintiff also informed the Cermak defendants of his plight and asked for their assistance. On November 5, 2008, he wrote individual letters to each of them, describing the severe pain and numbness in his left pinky, explaining that he had not been to Stroger since August 2008, and pleading for help. At some point in November 2008, plaintiff spoke with either defendant Khan or Sims, who told plaintiff he was to be sent back to Stroger. In June or July 2009, defendant Sims again assured plaintiff he would be sent to Stroger, but that did not happen.

DISCUSSION

I. Legal Standards

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, the court thus accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations omitted). To provide the defendant with "fair notice of what the claim is and the grounds upon which it rests," id. at 555, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2). In addition, its allegations must plausibly suggest that the plaintiff has a right to relief and raise that possibility above the "speculative level." Twombly, 550 U.S. at 555, citing 5 ...


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