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Bernard Mims (R-55072 v. Wexford Health Sources

December 12, 2012

BERNARD MIMS (R-55072) , PLAINTIFF,
v.
WEXFORD HEALTH SOURCES, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Bernard Mims, an inmate at the Stateville Correctional Center, initiated this pro se 42 U.S.C. § 1983 action in August 2011 against seventeen Defendants (Stateville officials, doctors, and medical staff, as well as Wexford Health Sources and its Chief Executive Officer Kevin Halloran). Plaintiff alleges that, since 2007, when he entered the prison, he has received inadequate treatment for his hand, which was broken sometime before his arrival and which allegedly healed improperly. On initial review, the Court dismissed ten Defendants and allowed Plaintiff to proceed against the following seven parties: Dr. Evaristo Aguinaldo, Dr. Partha Ghosh, Dr. Liping Zhang, Dr. Richarrd Shute, Physiciaa's Assistant Latoya Williams, Wexford Health Sources, and its CEO Kevin Halloran. These Defendants have filed a motion to dismiss. Plaintiff has responded. For the reasons stated herein, the Court denies the motion to dismiss.

STANDARD OF REVIEW

When reviewing a motion to dismiss, a court considers to be true all well pleaded allegations, as well as any inferences reasonably drawn therefrom. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A court may also consider documents attached to the complaint as part of the complaint. Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002); see also Fed. R. Civ. P. 10(c).

Under the pleading standard of Fed. R. Civ. P. 8(a)(2), a complaint need not contain detailed factual allegations, but it must present more than labels, conclusions, or a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must at least "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 -77 (7th Cir. 2007), citing Twombly, 550 U.S. at 555. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

If a plaintiff pleads facts demonstrating that he has no claim, he may plead himself out of court, warranting dismissal of the complaint. McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). "A plaintiff pleads himself out of court when it would be necessary to contradict the complaint in order to prevail on the merits." Tamayo, 526 F.3d at1086 (internal quote and citation omitted). A court may also dismiss claims to which affirmative defenses apply, such as a failure to exhaust administrative remedies or the applicability of a statute of limitations, when the defenses are so plain from the face of the complaint such that the claim can be regarded as frivolous. Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010), citing Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002). With these standards in mind, the Court addresses the motion to dismiss.

DISCUSSION

Defendants note that Plaintiff has included medical records and copies of grievances with his complaint. They contend: (1) the medical records reveal that Plaintiff received treatment for his hand and that the Defendants were not deliberately indifferent; (2) Plaintiff failed to exhaust administrative remedies against the Defendants; (3) Plaintiff failed to allege personal involvement by Wexford CEO Halloran; (4) Plaintiff failed to allege a custom or policy claim against Wexford, and (5) the claims against Dr. Aguinaldo are time-barred.

Plaintiff States Claims of Deliberate Indifference

A claim of deliberate indifference to a serious medical need consists of objective and subjective elements. A plaintiff must be able to demonstrate both: "1) an objectively serious medical condition; and 2) an official's deliberate indifference to that condition," i.e. that the defendant was actually aware of the substantial risk of harm but disregarded it. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011); see also Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). The Defendants do not address whether Plaintiff's hand injury is a serious medical condition, but instead argue that the medical records demonstrate that there was no deliberate indifference with respect to that condition.

According to the medical records attached to the complaint, Dr. Aguinaldo examined Plaintiff in September 2007 when he entered the prison and noted, among other conditions, a right hand injury from months before. (R. 11, Am. Compl. at 25.) Dr. Zhang examined Plaintiff in December 2009, noting Plaintiff's complaints of pain or deformity with a right hand injury from eight years earlier, for which Dr. Zhang ordered x-rays. X-rays taken later that month revealed, "No new pathology, solidly healed old f[ractures] of 4, 5 metacarpal." (Id. at 34.) In December 2010, Physician's Assistant Williams examined Plaintiff's hand, noted a deformity, and referred him for an evaluation by the medical director. (Id. at 35.) Dr. Shute examined Plaintiff in April 2011,noted his complaints of pain and sensation of coldness, wrote that the hand was likely arthritic, prescribed 400 mg of Motrin, and ordered x-rays. (Id. at 36.) On May 19, 2011, Dr. Shute again saw Plaintiff and reviewed x-rays, which again showed a "solidly healed" old injury with "no new pathology" (id. at 37).

Defendants contend that these medical records show that Plaintiff's complaints about his hand were not ignored, that he received pain medication, that x-rays were ordered to determine if there was a new injury, and that such treatment thus demonstrates no deliberate indifference. Even though Plaintiff received treatment for his hand, including pain medication and x-rays, he may nonetheless be able to show that such treatment was clearly inadequate for his condition. Deliberate indifference does not require Plaintiff to establish that he was literally ignored King v. Kramer, 680 F.3d 1013, 1019 (7th Cir. 2012). "A medical professional's deliberate indifference may be inferred when the 'medical professional's decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.'" Id. at 1018-19, quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261--62 (7th Cir. 1996). The medical records, by themselves and without more, do not establish that the treatment Plaintiff received was not "a substantial departure from accepted professional judgment" and do not necessarily belie Plaintiff's allegations that the Defendants acted with deliberate indifference. The Court cannot conclude that Plaintiff has pled himself out of court based upon the medical records attached to his complaint. Defendants' motion to dismiss on this ground is thus denied.

Failure to Exhaust:

Defendants contend that two grievances attached to Plaintiff's complaint show that he specifically referred to only Dr. Ghosh in the grievances and thus did not exhaust administrative remedies for the other members of Stateville's medical staff. The two grievances are from February 2011 and April 2011. (R. 11, Am. Compl. at 41, 43.) The February 2011 grievance states that Dr. Ghosh had ordered x-rays of Plaintiff's hand, but never called Plaintiff back to discuss the results. (Id. at 43.) The April 2011 grievance states that Plaintiff had been in pain with his hand ...


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