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Johnnie F. Flournoy, Jr. v. Parthasarathi Ghosh

July 24, 2012


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiff Johnnie Flournoy, Jr., an inmate at the Stateville Correctional Center ("Stateville"), brought a § 1983 action against Defendants Parthasarathi Ghosh, M.D., and Warden Terry McCann, each in their individual capacities. Now before the court are the defendants' motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. Ghosh moves for summary judgment on Counts I and III of Flournoy's Third Amended Complaint. McCann moves for summary judgment on Count II. All three counts are claims of deliberate indifference to serious medical needs in violation of Flournoy's Eighth Amendment right to be free from cruel and unusual punishment, related to the defendants' alleged failure to ensure that Flournoy received prescription medication needed to prevent the progression of his glaucoma. Because Flournoy has presented evidence creating a material question of fact as to whether Ghosh and McCann were aware of his serious medical condition and exhibited deliberate indifference by failing to ensure that he received the necessary medication, both Rule 56 motions are denied.


The following facts are undisputed, except where otherwise indicated.*fn1 Stateville is a prison maintained by the Illinois Department of Corrections ("IDOC"). Flournoy alleges that at various times while imprisoned at Stateville, he was not provided with prescription eye drops on a timely basis, sometimes going months without receiving his prescriptions.*fn2 He claims that the delay in obtaining this medication caused him permanent harm. Ghosh is the former Medical Director of Stateville, while McCann was the prison's warden during the time the alleged violations occurred. As warden, McCann was responsible for the overall operation of the prison facility. Assistant wardens supervised specific areas, such as the provision of healthcare, and reported to McCann.

A. Flournoy's Medical History

In July 2000, at the IDOC Joliet Correctional Center, Flournoy was diagnosed as "glaucoma suspect," with intraocular pressure in each eye of 20 mmHg. "Intraocular pressure" is the fluid pressure inside the eye, measured in millimeters of mercury. The average intraocular pressure in the population is 10-12 mmHg, and the high limit of average is 21 mmHg. High intraocular pressure, or ocular hypertension, is associated with a risk of damage to the optic nerve, which is irreversible and can lead to glaucoma. Keeping intraocular pressure low helps to prevent the progression of glaucoma.

Medical records dated December 4, 2003, stated that Flournoy was "glaucoma suspect [in] both eyes." Between October 2003 and July 2005, he was prescribed medicated eye drops to control his ocular hypertension. Flournoy received prescriptions for Xalatan eye drops on December 1, 2004, and March 9, 2005.

Flournoy was transferred into Stateville on March 16, 2005. On that date he was again prescribed Xalatan eye drops for ocular hypertension by Dr. Evaristo Aguinaldo. The prescription indicated that the medication was to be discontinued on July 31, 2005. Flournoy advised prison health care professionals on August 2, 2005, that he had been suffering from ocular hypertension for five years. Flournoy further advised the health care professionals that he was currently without his eye medications. On December 5, 2005, Flournoy again told the health care professionals that he was "glaucoma suspect" in both eyes and suffered from ocular hypertension, and that he "was supposed to be referred to the ophthalmology specialty clinic." On December 12, 2005, Flournoy underwent an Offender Physical Examination, during which he advised the examiner of his history of glaucoma. On December 28, 2005, Flournoy's mother called the prison to say that he was not receiving his glaucoma medication, and she was advised that the medical department would be informed. On February 1, 2006, Flournoy's medical providers were told that he had run out of Xalatan eye drops in August 2005.

On February 21, 2006, Flournoy was seen by Stateville's ophthalmologist, Dr. James Bizzell. Flournoy's intraocular pressures were 26 and 22 mmHg, and his medical history indicated that he had been seen in the glaucoma clinic at a previous institution and that he had suffered from high intraocular pressure since 2001. Dr. Bizzell wrote Flournoy a prescription for eye drops. Dr. Ghosh signed the report of the consultation with Dr. Bizzell, indicating that he had reviewed the report and approved its recommendations.

On October 19, 2006, Flournoy was seen again by Dr. Bizzell. His interocular pressures were 26 and 28 mmHg. The report from that appointment states, "No drops since August," and indicates that Flournoy was to return the next week to have his pressure rechecked. On November 14, 2006, Flournoy was prescribed Alphagan eye drops by Dr. Bizzell.

On January 4, 2007, Flournoy was seen by the ophthalmology department of the University of Illinois Chicago ("UIC") Medical Center. His prescriptions were adjusted, and the recommended prescriptions were approved by Dr. Ghosh. On January 5, 2007, Dr. Ghosh prescribed Flournoy Lumigan eye drops. On April 3, 2007, Flournoy returned to the ophthalmology department at UIC. Prescriptions were recommended by UIC and approved by Dr. Ghosh. On April 12, 2007, Dr. Ghosh prescribed Flournoy Cosept eye drops. On August 31, 2007, Dr. Ghosh wrote Flournoy another prescription for Cosept.

Flournoy was seen by Dr. Mansi Parikh, an ophthalmology resident at UIC, on September 5, 2007. Dr. Parikh testified in her deposition that although Flournoy's medical records indicated that his intraocular pressures were 26 and 24 mmHg on January 24, 2007, when she saw him on September 5, 2007, his pressures were 56 and 59 mmHg. She stated that Flournoy's "story to us" was that he had been without his eye drops since July 2007. (Pl.'s Rule 56.1 Statement of Add'l Facts Ex. 23 (Parikh Dep.) 36:4-19, ECF No. 217-5.) She stated that Flournoy's "pressure was . . . at a very dangerous level, and on examination he had damage to the optic nerve . . . for which that pressure was very dangerous." (Id. 34:20-24.) She further stated that going without eye drops intended to prevent pressure buildup in the eye "greatly increases the likelihood of having further damage to the optic nerve." (Id. 31:24, 32:1-6.) According to Parikh, Flournoy "really needed his pressure controlled" (Id. 34:24, 35:1.), and "needed to have his eye drops to at least determine how much his pressure would reduce with medication," although even "despite starting the drops, he would need to have surgery in the left eye." (Id. 35:8-10, 13-15.) On September 10, 2007, Dr. Parikh again saw Flournoy, and wrote in her notes that "patient needs medications now as [there is] ongoing damage, clear progression of cupping of the left eye since June of 2007." (Id. 40:10-12.) She stated in a report given to the prison that Flournoy needed to be on eye drops and "has ongoing damage without his medications." (Id. 57:4-5, 58:20-21.).

Flournoy had surgery on both eyes at UIC on September 12, 2007. (Id. 39:10). He then returned for a number of post-surgical checkups. On September 13, 2007, UIC recommended various medications, and on September 14, 2007, Dr. Ghosh wrote prescriptions based on UIC's recommendations. On September 24, 2007, Flournoy was again seen at UIC. Adjustments to his medications were recommended and approved by Dr. Ghosh, who adjusted the prescriptions on September 26, 2007. On October 2, 2007, Flournoy returned to UIC, where his medications were adjusted; Ghosh wrote new prescriptions for the medications on October 3, 2007. On October 23, 2007, UIC again recommended adjustments in the medications, and Ghosh adjusted them accordingly. On November 21, 2007, the medications were again adjusted.

B. Flournoy's Grievances

Flournoy filed numerous grievances complaining that he was not provided with his prescriptions. In most cases, Flournoy's grievances were referred to the Healthcare Unit, and Ghosh responded to the grievances. Ghosh investigated the grievances by reviewing Flournoy's medical records and contacting the pharmacy. Flournoy was informed that the Healthcare Unit had investigated his claims and assisted in his receipt of medications. After Ghosh responded to a grievance, a grievance officer prepared a report, which was given to the warden's office. Grievances that came to the warden's office were reviewed by the Clinical Services Supervisor, or in that person's absence, by the warden's administrative assistant, one of whom signed the grievances as the warden's designee. McCann stated in his deposition that he personally reviewed one emergency grievance submitted by Flournoy and forwarded it to the Healthcare Unit for review.

On December 27, 2005, Flournoy submitted Grievance #0336, requesting to see an eye doctor because of his glaucoma and stating that he had been without his eye medication for months. On March 24, 2006, Dr. Ghosh responded to the grievance with a memorandum stating that Flournoy "received appropriate treatment on 8/2/05. . . 8/19/05 and 8/24/05. . . In future if he has any new medical issues he must contact the [medical technician]." The memorandum did not address Flournoy's request to see an eye doctor or the delay in obtaining his medication, although the record elsewhere shows that Flournoy was seen by Dr. Bizzell on February 21, 2006. On April 5, 2006, the grievance officer indicated, quoting Ghosh's memorandum, that the "issue appears to have been addressed." On September 13, 2006, McCann (by a designee with signature authority) concurred with the grievance officer's response.

On September 18, 2006, Flournoy submitted Grievance #0047, requesting that his medical concerns regarding his eyes be addressed without delay and noting that his prescription had not been refilled, although he had requested a refill a month and a half prior to filing the grievance. The grievance was referred to the Healthcare Unit for a response, which was received on January 18, 2007. The grievance officer's report indicated that Flournoy was seen by a doctor in October and November 2006 and at UIC on January 4, 2007, and that it appeared the grievance issue had been resolved. It did not specifically mention the delay. On January 25, 2007, McCann (by his designee) concurred with the Grievance Officer's response.

On October 4, 2006, Flournoy submitted an emergency grievance directly to the warden's office, requesting that his prescription be refilled without delay. On October 11, 2006, McCann (by his designee) determined that the matter was not an emergency and that Flournoy should submit the grievance in the normal manner.

On January 22, 2007, Flournoy submitted Emergency Grievance #0487, requesting the prescription medication that had been prescribed for him by UIC on January 4, 2007. On January 30, 2007, McCann (by his designee) determined that it was not an emergency and that the grievance should be handed in the regular manner. Flournoy appealed this grievance to the Administrative Review Board, stating that he did not receive his prescription eye drops until March 12, 2007. Ghosh wrote a memorandum to the grievance office on April 15, 2007, stating that Flournoy had received the medication and subsequently visited UIC again on April 3, 2007. The grievance ...

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