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Steven L. Zirko v. Parthasarathi Ghosh

November 30, 2012

STEVEN L. ZIRKO, PLAINTIFF,
v.
PARTHASARATHI GHOSH, M.D., CATALINO BAUTISTA, M.D.,MARCUS HARDY, KAREN RABIDEAU, PHYLLIS BAKER, AND UNKNOWN DEPARTMENT OF CORRECTIONS OFFICIALS, DEFENDANTS.



The opinion of the court was delivered by: Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Steven L. Zirko is a prisoner incarcerated at Stateville Correctional Center ("Stateville"), Joliet, Illinois. In his Third Amended Complaint, Plaintiff Zirko alleges violations of his constitutional rights pursuant to 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs and state law claims of willful and wanton conduct against Defendants Parthasarathi Ghosh, M.D. and Catalino Bautista, M.D., who both served as the medical director at Stateville, and Marcus Hardy, the current Warden of Stateville. The plaintiff also alleges that Karen Rabideau, a Stateville Placement Officer and Correctional Counselor, Phyllis Baker, a Stateville Library Associate, and other unknown officials retaliated against him for engaging in First Amendment activities by failing to extend his employment assignment as an inmate law clerk and librarian.

Now before the Court are two motions-the first by Defendant Drs. Ghosh and Bautista to dismiss the claims against them, and the second by Defendants Hardy, Rabideau, and Baker for leave to file a "Prisoner Litigation Reform Act ('PLRA') Answer." For the reasons set forth below, both motions are denied in their entirety.

I. BACKGROUND

The following facts and allegations are taken from the plaintiff's Third Amended Complaint and, for purposes of evaluating this motion only, are taken as true. See Dkt. 96.

A. Lack of Medical Care

Plaintiff Zirko was taken into the custody of the Illinois Department of Corrections ("IDOC") on July 23, 2009 and housed at Stateville. Upon his initial entry to Stateville, the plaintiff received a medical examination. At this examination, the plaintiff alleges that he informed prison staff that he suffered from a medical condition that required treatment, namely, three herniated spinal discs. Zirko alleges that without proper treatment, the herniated discs in his back caused him to suffer severe pain and numbness in his legs.

The prison staff instructed the plaintiff to make an appointment with Defendant Dr. Ghosh, Stateville's medical director at the time, because only Dr. Ghosh had the authority to prescribe the necessary treatment. The plaintiff alleges that immediately after his July 23, 2009 examination he made several written and oral requests for an appointment with Defendant Dr. Ghosh. On September 23, 2009, the plaintiff was examined by Stateville's non-physician medical staff. At this appointment, Zirko informed the staff that he was in extreme pain and that he had not received any medical treatment since arriving at Stateville two months earlier. The examining staff prescribed Zirko pain medication, which failed to alleviate his back pain. As noted below, the plaintiff also made his second request for an emergency appointment with Dr. Ghosh at this time.

Zirko alleges that due to his excruciating back pain he continued to request appointments with the medical director. According to the complaint, he requested emergency appointments to see Defendant Dr. Ghosh on: September 7, 2009; September 23, 2009; October 6, 2009; October 22, 2009; November 2, 2009; November 16, 2009; December 8, 2009; December 28, 2009; January 4, 2010; January 18, 2010; and February 1, 2010. This is approximately two requests per month for six months, during which time Dr. Ghosh did not examine or provide the plaintiff with medical treatment.

On January 16, 2010 and during the period in which these requests for an emergency appointment were being made, the plaintiff alleges that, due to the untreated herniated spinal discs, his legs went numb as he was climbing into the top bunk of his bed. The plaintiff alleges that he fell and struck his jaw on a table, causing him extreme pain, which continues to this date. As noted below, Dr. Ghosh did not examine the plaintiff's jaw injury until April 4, 2010, approximately three months after that injury occurred.

On February 8, 2010, Zirko filed a grievance over lack of medical care and his unfulfilled requests for an appointment with Defendant Dr. Ghosh. The plaintiff alleges that this grievance has been fully exhausted within the IDOC's grievance procedures. On March 3, 2010, non-physician staff examined the plaintiff again, at which time he advised the staff that he was still in extreme pain and having trouble climbing into his top bunk due to the numbness in his legs. The staff prescribed Zirko a back brace and pain medication, which the plaintiff contends failed to alleviate his pain. On March 4, 2010, Dr. Liping Zhang examined Zirko for conditions unrelated to his back pain. Dr. Zhang informed Zirko that she could not do anything for his back pain, and that he should continue requesting appointments with Defendant Dr. Ghosh.

On March 10, 2010, Zirko filed another grievance for lack of medical care and unfulfilled requests to see Dr. Ghosh. The plaintiff contends that this grievance has also been fully exhausted. Non-physician medical staff examined Zirko on March 13, 2010, at which time Zirko complained of continuing back pain and numbness in his legs. The staff then referred Zirko to Dr. Ghosh for a medical appointment on March 17, 2010 and issued him a temporary low-bunk permit.

Over eight months after Zirko's initial request, on April 4, 2010, Dr. Ghosh examined the plaintiff for his jaw injury.*fn1 However, Dr. Ghosh made no diagnosis and prescribed no medication for that injury. Five weeks later, on May 13, 2010, Dr. Ghosh examined the plaintiff for his back pain. Dr. Ghosh scheduled an appointment at the University of Illinois at Chicago Medical Center ("UICMC") on June 30, 2010 so that magnetic resonance imaging ("MRI") could be taken of the plaintiff's spine. During this appointment, Zirko alleges that he also complained to Dr. Ghosh about jaw pain, but that Dr. Ghosh ignored those complaints, did not examine his jaw, and, again, did not prescribe any treatment for that injury.

On June 30, 2010, the date of the MRI at UICMC, Zirko alleges that his intense back pain prevented him from lying down for the required 30 minutes needed to complete the procedure. Non-physician medical staff examined Zirko on July 7, 2010, at which time the plaintiff complained of back and jaw pain and negative side effects of the pain medication he had been prescribed. Zirko alleges that the staff ignored his complaints and failed to provide him with alternative medical treatment. According to the complaint, he filed a third grievance on July 15, 2010 over the medical care he requested on July 7, but did not receive, and his many unfulfilled requests to see Defendant Dr. Ghosh. Zirko again alleges that this grievance has been exhausted.

Almost two months after his initial attempt, Zirko completed an MRI at UICMC on August 13, 2010. The results of the MRI showed that the plaintiff had three herniated discs in his back, just as Zirko had informed the medical staff upon his arrival at Stateville more than a year earlier. Dr. Ghosh examined Zirko on August 31, 2010 to discuss the MRI results. Dr. Ghosh then prescribed extra mattresses, pain medication, and treatment at the UICMC pain clinic. However, the pain medication failed to alleviate Zirko's pain, and the prison staff refused to provide the extra mattresses that Dr. Ghosh had authorized.

Zirko filed grievances on September 28 and October 18, 2010 based on the prison staff's failure to provide the authorized extra mattresses. Zirko alleges that these grievances have been fully exhausted. On October 29, 2010, Zirko filed another grievance over the extra mattresses, which the plaintiff alleges has also been fully exhausted.

Dr. Ghosh approved Zirko for an epidural steroid injection for his back pain on November 8, 2010. However, Zirko never received this injection. Non-physician staff examined Zirko on December 14, 2010, at which time he again complained of back and jaw pain. At this point, Zirko had not received the epidural steroid shot prescribed by Dr. Ghosh over a month prior.

According to Zirko, after suffering another month of severe pain, he filed a grievance on January 11, 2011 over lack of medical care and unfulfilled requests for appointments with Dr. Ghosh. Dr. Ghosh examined Zirko on January 21, 2011 for his back and jaw pain. Dr. Ghosh again prescribed a steroid injection, which, again, the plaintiff never received. Dr. Ghosh also wrote a permit for a low bunk, double mattresses, extra pillows, a back brace, a wrist support, and a table and chair for Zirko's cell. See Dkt. 1, at 23 ("Stateville Correctional Center Medical Permit"). However, Dr. Ghosh subsequently voided that medical permit, and Zirko filed a grievance on February 2, 2011 as a result.

On March 4, 2011-almost four months after it was first prescribed by Dr. Ghosh-Zirko was sent to the UICMC for an epidural steroid injection in his back. The injection had a positive, but temporary, effect. Zirko requested a follow-up appointment with Dr. Ghosh, but did not receive one. According to Zirko, he then requested several unfulfilled follow-up appointments with Dr. Ghosh. Approximately two months later, on May 20, 2011, Zirko filed a grievance for lack of medical care and unfulfilled requests for a medical appointment with Dr. Ghosh after the March 4 epidural steroid injection.

On June 2, 2011, Stateville non-physician medical staff examined Zirko. The plaintiff alleges that he requested an appointment with Dr. Ghosh at this time and was told that he would receive the next available appointment. However, Defendant Dr. Ghosh never examined Zirko again before he retired as Stateville's medical director.

On June 27, 2011, Dr. Bautista examined Zirko after taking over as Stateville medical director. At this appointment, Zirko described his untreated medical conditions and back and jaw pain. According to the plaintiff, Dr. Bautista ignored his jaw pain, did not examine the injured jaw, and did not prescribe any treatment. The complaint does not indicate whether Dr. Bautista treated Zirko for his herniated discs, which at this point had been diagnosed. At the time of the filing of the Third Amended Complaint, ...


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