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Allen Johnson v. Partha Ghosh

June 30, 2011


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the Court are Defendant Dr. Partha Ghosh's ("Ghosh") Motion to Dismiss Plaintiff's Complaint, and Defendant Marcus Hardy's ("Hardy") Motion for Summary Judgment. Because the Motions largely raise the same issues, the Court will rule on them jointly. For the reasons that follow, both are denied.


Plaintiff Allen Johnson ("Johnson") is an inmate at Stateville Correctional Center who filed suit alleging violations of 42 U.S.C. § 1983 in connection with the treatment, or alleged lack of treatment, he received for a broken foot. Johnson's First Amended Complaint names Ghosh, the Medical Director at Stateville; Hardy, the prison's warden; and John Doe, an unnamed correctional officer. Johnson contends that on the morning of September 2, 2010, he injured his right foot and ankle while exercising at the prison. Defendant Doe, the correctional officer, allegedly refused to provide medical assistance, instead telling Johnson to "man up," and return to his cell house. Once there, Johnson contends, he suffered severe pain and vomiting from his injuries. Other correctional officers requested medical assistance for Johnson from the prison's Health Care Unit, but they did not respond. A half hour later, correctional officers contacted a nurse from the unit, who brought a wheelchair to Johnson's cell house. Johnson was then admitted to the Health Care Unit, some two and a half hours after his injury occurred.

Once there, according to Johnson's Complaint, he had to wait more than four hours before being taken to Provena Saint Joseph Medical Center in Joliet ("St. Joseph"). During that time, his pain was so severe that he suffered tremors and vomiting. Doctors at St. Joseph ordered X-rays, and informed Plaintiff that he had chipped bone fractures in his foot. Doctors also told him that he might have further damage to his foot and ankle, but they would not be able to tell until the swelling decreased. A half-cast was put on Johnson's lower right leg and foot, and he was told to return for a full cast and X-rays when the swelling subsided.

After returning to the prison, Johnson contends, he had to wait several hours before he was given a room in the Health Care Unit. Johnson stayed at the Health Care Unit for five days, until September 7, 2010, but contends he received no medical attention during that time. His foot was not monitored, and although he was told to keep his leg elevated, no one provided Johnson with the means to do so. He contends he was forced to lie on a flat mattress and beg for pain medication.

Johnson maintains that on the morning of September 7, 2010, Ghosh ordered that he be discharged from the Health Care Unit, even though his injuries had not healed and even though Ghosh had not personally examined Johnson. Ghosh also ordered that the half cast be removed, and a nurse forced Johnson's swollen foot into an athletic shoe. Johnson then had to walk up four flights of stairs to his cell house on a broken, unhealed foot. When he returned to his cell house, Johnson was in such extreme pain that he suffered body tremors and vomiting.

That same day, September 7, 2010, Johnson filed an emergency grievance with Hardy requesting medical attention. Hardy summarily denied the grievance without personally observing Johnson's condition. Johnson maintains that he also sent Ghosh a note requesting medical care, but received no response.

Ghosh did order that Johnson be transferred to a lower gallery and a low bunk, but Johnson maintains that these orders were not carried out. Each day, he says, he was forced to climb four flights of stairs to his cell, which caused him to reinjure his foot several times. On September 12, 2010, Johnson filed a second emergency grievance, which was again denied by Hardy. On September 20, 2010, he filed a formal appeal to the prison's Administrative Review Board (the "ARB"), but that too was denied. Johnson alleges that on October 8, 2010, he was given an appointment with Ghosh, but after waiting more than three and a half hours, he was returned to his cell without receiving treatment.

Johnson contends that his injured foot has not healed properly because he did not receive the treatment suggested by the doctors at St. Joseph, including further X-rays and a cast to stabilize the bones. As such, Johnson alleges that Defendants were deliberately indifferent to his serious medical needs.


Both Ghosh and Hardy contend that Johnson failed to exhaust his administrative remedies, and as such his suit should be dismissed. However, they use different vehicles to make this argument. Hardy has filed a Motion for Summary Judgment, while Ghosh seeks dismissal of the Complaint pursuant to FED. R. CIV. P. 12(b)(6). Ghosh additionally argues that Johnson has failed to state a claim for deliberate indifference to his medical needs.

The parties dispute whether the issue of exhaustion is properly raised through a motion for summary judgment or a motion to dismiss, particularly where Ghosh relies on documents outside Johnson's Complaint. However, except for a printout of part of the Illinois Administrative Code (which merely states a portion of the relevant law governing prison grievances) all of the documents in question were attached to Johnson's original Complaint and concern his emergency grievances and appeal to the Administrative Review Board. Johnson refers to these documents in his Amended Complaint, so the Court may consider them in deciding Ghosh's Motion to Dismiss without converting it into a motion for summary judgment. Leslie v. Doyle, 868 F.Supp. 1039, 1041 (N.D. Ill. 1994).

In ruling on a motion under FED. R. CIV. P. 12(b)(6), the Court must accept as true all well--pled facts, and draw all inferences in favor of the non--moving party. LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 941 (7th Cir. 2011). Where the issue of the sufficiency of a complaint hinges on an affirmative defense, a motion to dismiss may be granted ...

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