The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
There are two motions before the Court. Plaintiff Derrick Morris ("Morris"), as administrator of the estate of decedent Ernest G. Morris ("Ernest"), moves for partial summary judgment against Doctor Partha Ghosh's ("Dr. Ghosh") affirmative defenses based on qualified immunity and failure to state a claim upon which relief can be granted. In addition, the Court sua sponte converts Dr. Ghosh's first affirmative defense into a motion to dismiss for failure to state a claim. For the reasons set forth below, Dr. Ghosh's motion to dismiss and Morris' motion for partial summary judgment as to the second affirmative defense are denied. Morris' motion for partial summary judgment as to the first affirmative defense is denied as moot.
Ernest was incarcerated at the Statesville Correctional Facility, in Illinois (the "SCF"). During his incarceration, Ernest needed special medical attention because he suffered from congestive heart failure, hypertension, asthma, unstable angina, and type-2 diabetes. At the SCF, Ernest was allowed to make sick calls as needed and was placed in chronic care clinics where he was seen at regular intervals by medical staff. Whenever higher medical care was needed, Ernest was transferred to the Provena-Saint Joseph's Hospital or to the Cardiology Department of the University of Illinois at Chicago (the "UIC Cardiology"), where he was treated by outside physicians.
All medical transfers of inmates to outside facilities were managed and approved by SCF's Medical Director, Dr. Partha Ghosh ("Ghosh"), who was employed by Wexford Health Sources, Inc., a private company. In his administrative capacity, Dr. Ghosh's role was to determine when and to what extent referrals to outside physicians was appropriate. When an inmate would return from an outside facility, Dr. Ghosh would see him, run a cursory check, summarize his medical conditions and the medication he needed to take, and re-admit him in the correctional institute.
Due to his heart and diabetes problems, Ernest was regularly transferred to outside physicians. From November 10, 2005, to April 3, 2007, Dr. Ghosh regularly scheduled appointments and referred Ernest to outside podiatrists, ophthalmologists, and cardiologists. Upon Ernest's return to the SCF, Dr. Ghosh would examine the outside checkup results and sign off on them. He would then see Ernest, run cursory checks on him, summarize his medical problems and medication, and recommend follow-ups in clinics at the SCF. At no time during these medical referrals and appointments did Dr. Ghosh directly and personally examine Ernest.
On August 13, 2007, Ernest succumbed to a cerebral infarction. On August 19, 2009, Morris filed this action against Dr. Ghosh. In his third amended complaint, Morris asserts a claim under 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, and two supplemental claims for medical malpractice under the Illinois Survival Act and the Illinois Wrongful Death Act. The complaint also seeks recovery of funeral and burial expenses. On September 8, 2009, Dr. Ghosh filed an answer raising two affirmative defenses based on Morris' failure to state a claim upon which relief can be granted and on Dr. Ghosh's qualified immunity. Morris now moves for partial summary judgment with respect to the affirmative defenses.
I. Motion to Dismiss for Failure to State a Claim
A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court draws all reasonable inferences in favor of the plaintiff, construes the allegations of a complaint in the light most favorable to the plaintiff, and accepts as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations within a complaint must raise a claim for relief "above the speculative level." Bell Atl. Corp., v. Twombly, 550 U.S. 544, 555 (2007). To state a cognizable claim, a complaint must describe the claim in sufficient detail to give the defendant notice of what it is and the ground upon which it rests and plausibly suggest that the plaintiff has a right to relief. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007).
II. Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Protective Life Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). A genuine issue of material fact exists when, based on the evidence, a reasonable jury could find in favor of the non-moving party. Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). A court construes all facts and draw all reasonable inferences in favor of the non-moving party. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009). With these principles in mind, we turn to the present motions.