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David Gevas v. Mike Borkowski

January 27, 2011

DAVID GEVAS, PLAINTIFF,
v.
MIKE BORKOWSKI, C/O
HENDERSON,
WEXFORD HEALTH SOURCES, INC., DR.PARTHA GHOSH AND DR. EUARISTO AGUINALDO, DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Plaintiff, who is in the custody of the Illinois Department of Corrections ("IDOC"), has sued Mike Borkowski, Oliver Henderson, Dr. Partha Ghosh, Dr. Euaristo Aguinaldo and Wexford Health Sources, Inc. pursuant to 42 U.S.C. § 1983 for their alleged violations of his Eighth Amendment rights.*fn1 Defendants Ghosh, Aguinaldo and Wexford have filed a Federal Rule of Civil Procedure ("Rule") 56 motion for summary judgment. For the reasons set forth below, the Court grants in part and denies in part the motion.

Facts

In 2007, plaintiff was an inmate at the Stateville Correctional Center and the defendants held the following jobs there: Ghosh was the medical director, Aguinaldo was a staff doctor, Borkowski was a medical technician, Henderson was a correctional officer and Wexford was the medical services vendor. (Pl.'s Resp. Defs.' LR 56.1(a) Stmt. ¶¶ 1-4; Pl.'s Stmt. Add'l Facts ¶¶ 17, 30; id., Ex. 2, Gevas Aff. ¶ 32.)

In late 2006, plaintiff developed a fungal infection called Onychomycosis in his left thumb and right index finger and was given medication for it. (Pl.'s Stmt. Add'l Facts, Ex. 6, Clinite Aff., Ex. A at 2-3, 3/18/07 Infection Grievance.) He saw a doctor or physician assistant ("PA") on January 4, 2007, who prescribed a six-week course of the medication at an increased dose. (Id.; Defs.' LR 56.1(a) Stmt., Ex. 3, 1/4/07 Prescription Order.)

Sometime before March 15, 2007, plaintiff ran out of the medication. (Pl.'s Stmt. Add'l Facts, Ex. 2, Gevas Aff. ¶¶ 30-32.) He asked Borkowski for a refill, but Borkowski refused to give him one. (Id. ¶ 32.)

On March 15, 2007, plaintiff saw Aguinaldo. (Pl.'s Stmt. Add'l Facts ¶ 13.) Aguinaldo saw that plaintiff had nail fungus and knew that he had had it for several months, but refused to refill the medication. (Id. ¶¶ 30-31; id., Ex. 6, Clinite Aff., Ex. A at 2-3, 3/18/2007 Infection Grievance; Defs.' LR 56.1(a) Stmt., Ex. 5, Aguinaldo Dep. at 13-15, 30-32.)

On March 18, and 25, 2007, plaintiff submitted emergency grievances seeking treatment for his fingers. (Pl.'s Stmt. Add'l Facts, Ex. 6, Clinite Aff., Ex. A at 2-3, 6-7, 3/18/07 & 3/25/07 Infection Grievances.) Ghosh did not consider the grievances to be emergencies and ordered that they be addressed through the ordinary process. (Id.)

On May 11, plaintiff filed another grievance seeking treatment for his fingers. (Id. at 8, 5/11/07 Infection Grievance.)

On May 31, 2007, the prison grievance officer denied plaintiff's grievances, saying:

Per Medical Director, Dr. Ghosh: The writer reviewed the offender's medical records. He has been evaluated at by [sic] MD at HCU several times. He was seen by a particular health provider who did not prescribe medication based on his evaluation. He [sic] advised to contact CMT for MD sick call if he has recurrence of the old condition. (Id. at 9, 5/31/07 Grievance Officer's Report.)

In July 2007, plaintiff was examined by a PA who prescribed a higher dose of the medication he previously took. (Id., Ex. 1, Gevas Dep. at 87-88.) Shortly thereafter, plaintiff stopped taking the medication because it gave him headaches. (Id. at 87-89.) The PA ordered another medication for him, but Wexford refused to provide it because it was not in Wexford's formulary. (Id. at 88-89; id., Ex. 5, Ghosh Dep. at 45-47); see http://www.healthsymphony.com/insurancedefinitions.htm (defining "formulary" as "[a] listing of pharmaceuticals [a] health plan pays for").

Around the time that plaintiff developed the fungal infection, he also started to have tooth pain. (Pl.'s Stmt. Add'l Facts ¶ 1.) On January 30, 2007, non-party dentist Dr. Selmer examined plaintiff, determined that the tooth had an abscess, prescribed Motrin and penicillin for him and recommended that the tooth be extracted at plaintiff's next dental visit. (Id. ¶¶ 2-4; Defs.' Resp. Pl.'s Resp. Defs.' LR 56.1(a) Stmt., Ex. 1, Dental Record.)*fn2

After plaintiff finished the medication, the abscess worsened. (Pl.'s Stmt. Add'l Facts, Ex. 2, Gevas Aff. ΒΆΒΆ 8-10.) From February 18, through March 11, 2007, plaintiff repeatedly asked Borkowksi for a follow-up appointment with the dentist. ...


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