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Gene Johnson, #N62725 v. Dr. Thomas Baker

July 5, 2012

GENE JOHNSON, #N62725 PLAINTIFF,
v.
DR. THOMAS BAKER, DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge.

E-FILED

Friday, 06 July, 2012 08:13:27 AM Clerk, U.S. District Court, ILCD

OPINION SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on Defendant Dr. Thomas Baker's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (d/e 88) and Motion for Summary Judgment (d/e 96). For the reasons that follow, Dr. Baker's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies is GRANTED.

I. BACKGROUND

In May 2010, Plaintiff filed a Complaint in the Northern District of Illinois against Wexford Health Sources, Inc. (Wexford) and numerous other individuals. Plaintiff alleged the defendants were deliberately indifferent to his medical needs when they consistently failed to treat Plaintiff's chronic back pain and sexually transmitted disease. Compl. p. 3, ¶ 8 (d/e 1). The court appointed counsel for Plaintiff, dismissed the Complaint, and gave counsel leave to file an Amended Complaint. See d/e 6. On August 30, 2010, Plaintiff's counsel filed a First Amended Complaint against Wexford and other defendants alleging that Plaintiff repeatedly sought care for his back pain and genital herpes but was denied such care. See d/e 12.

In December 2010, Plaintiff voluntarily dismissed three defendants. See d/e 26. In February 2011, the court granted the remaining defendants' Motions to Dismiss without prejudice and gave Plaintiff leave to file a Second Amended Complaint. See d/e 44.

In July 2011, Plaintiff's counsel filed a Second Amended Complaint, pursuant to 42 U.S.C. § 1983, naming as defendants Wexford and, for the first time, Dr. Thomas Baker. See d/e 58. The Second Amended Complaint alleged that as early as April 2000, Plaintiff suffered from a herniated disc in his lower back due to trauma and, as early as May 1999, suffered from genital herpes. Sec. Amd. Compl. ¶ 9. Throughout the duration of his incarceration at Stateville Correctional Center (June 12, 2001 to September 9, 2009) and Western Correctional Center (September 10, 2009 to present), Plaintiff "has been repeatedly denied or received belated and/or insufficient medical care for his back pain and genital herpes." Sec. Amd. Compl. ¶ 11.

In November 2008, a Magnetic Resonance Imaging examination (MRI) revealed Plaintiff had degenerative joint disease of the lumbosacral spine at L3, L4, L5, and S1. Sec. Amd. Compl. ¶ 21. The degenerative joint disease causes painful spasms and arthritis in his back. Sec. Amd. Compl. ¶ 22. On November 18, 2008, Plaintiff was prescribed cyclobenzaprine to treat his muscle spasms and spinal arthritis and prescribed gabapentin for his nerve damage. Sec. Amd. Compl. ¶ 23. On November 3, 2009, Plaintiff was prescribed physical therapy for his back pain but never received physical therapy. Sec. Amd. Compl. ¶¶ 24, 25.

Plaintiff further alleged he experiences painful breakouts due to his genital herpes. Sec. Amd. Compl. ¶ 26. He experienced numerous delays in receiving treatment for his genital herpes and received inadequate treatment of his genital herpes. Sec. Amd. Compl. ¶ 27. He was prescribed no medication to treat his genital herpes from August 2001 until November 18, 2008, and he never received medication to prevent the frequency and intensity of his breakouts. Sec. Amd. Compl. ¶ 28, 30. Moreover, he never received a special shower permit to take a shower more than once a week to clean the infected area during breakouts. Sec. Amd. Compl. ¶ 29.

On June 14, 2011, Dr. Baker refused to continue prescribing Plaintiff medication for his back pain and genital herpes. Sec. Amd. Compl. ¶ 31. The Second Amended Complaint alleged that Plaintiff filed many grievances and medical complaints seeking medical care for his chronic back pain and his genital herpes, including: (1) an April 2, 2002 medical complaint, to which the Stateville Healthcare Medical Director responded that back pain and herpes were not considered chronic diseases; (2) a November 29, 2007 grievance, to which Plaintiff received a response placing him on the in-house sick call list; (3) an August 28, 2008 notice of intent; and (4) January and March 2009 grievances with the Administrative Review Board (ARB) alleging denial and delay of medical care. Sec. Amd. Compl. ¶ 32.

Plaintiff alleged that Wexford and Dr. Baker exhibited deliberate indifference to Plaintiff's serious medical conditions by denying Plaintiff sufficient access to the Illinois Department of Corrections' (IDOC) medical facilities, failing to prescribe Plaintiff adequate medication to treat his back, failing to provide Plaintiff his prescribed physical therapy, and failing to adequately treat Plaintiff's genital herpes. Sec. Amd. Compl. ¶ 40. Plaintiff sought compensatory damages, punitive damages, costs, attorney fees, and other relief that the Court deems equitable and just. Sec. Amd. Compl.

In July 2011, Wexford filed a Motion to Dismiss (d/e 64), which the Northern District of Illinois Court granted. In August 2011, Dr. Baker filed a Motion to Dismiss or Transfer, asserting that venue was not proper in the Northern District of Illinois. See d/e 67. The court granted the Motion to Transfer and transferred the case to the Central District of Illinois. See d/e 70. The court also granted counsel leave to withdraw their appearances on behalf of Plaintiff, and counsel did so. Id.

On October 18, 2011, Dr. Baker answered the Second Amended Complaint. See d/e 79. Dr. Baker's answer raised two affirmative defenses: qualified immunity and ...


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