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Foster v. Ghosh

United States District Court, N.D. Illinois, Eastern Division

November 26, 2013

TONY FOSTER, Plaintiff,
v.
DR. PARTHASARATHI GHOSH, DR. N. PATTERSON, O.D., WARDEN MICHAEL LEMKE, and SARAH JOHNSON, Defendants

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[Copyrighted Material Omitted]

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For Tony Foster, Plaintiff: Panos T. Topalis, Tribler Orpett and Meyer, P.C., Chicago, IL.

For Parthasarathi Gosh, Dr., Defendant: Michael John Charysh, LEAD ATTORNEY, Charysh & Schroeder, Ltd., Chicago, IL; Edwin J. Olson, Charysh & Schroeder, Chicago, IL.

For N. Patterson, Dr., Defendant: Gary Knight Mickey, LEAD ATTORNEY, Bernard K Weiler, Mickey, Wilson, Weiler, Renzi & Andersson, Aurora, IL; Catherine Elizabeth Malesky, Jessica Lynn Drahos, Mickey, Wilson, Weiler, Renzi & Andersson, P.c., Aurora, IL; Dean M Frieders, Mickey, Wilson, Weiler & Renzi, Aurora, IL.

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MEMORANDUM OPINION AND ORDER

Hon. Virginia M. Kendall, United States District Court Judge.

Plaintiff Tony Foster filed suit against Defendants Dr. Parthasarathi Ghosh, Dr. Norman Patterson, Warden of Stateville Correctional Center Michael Lemke, and Sarah Johnson, a member of the Administrative Review Board (collectively, the " Defendants" ). Foster alleges deprivation of his Eighth Amendment rights under 42 U.S.C. § 1983 as a result of Defendants' deliberate indifference to his serious medical needs. Foster's motion for a preliminary injunction requests an order that Defendants grant him access to an ophthalmologist to evaluate his cataracts and subsequently provide him with adequate treatment pursuant to that ophthalmologist's recommendation. The motion was presented on September 9, 2013 but the parties did not request a fact hearing. Dr. Patterson did not respond to the motion. For the reasons stated below, the preliminary injunction is granted.

BACKGROUND

In 1977, Foster had surgery to correct a detached retina and cataract in his left eye and has been legally blind in that eye ever since.[1] He became a prisoner under the care of the Illinois Department of Corrections in January 1985. On April 30, 2008, Foster saw Dr. Patterson, an optometrist,

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regarding the return of the cataract in his left eye, asking him to remove it. Dr. Patterson declined to order surgery (he could not do it himself because he is not an ophthalmologist), and instead prescribed Foster eyeglasses to aid in his vision. Foster again saw Dr. Patterson concerning the cataract in his left eye on September 8, 2009. Again Dr. Patterson declined surgery and altered Foster's eyeglasses prescription. Foster filed a grievance with the Illinois Department of Corrections Administrative Review Board on December 1, 2009, complaining that Dr. Patterson would not remove the cataract from his left eye, and also that a cataract was forming in his right eye. Foster also stated in his grievance that he sought the assistance of Dr. Ghosh, then the medical director of Stateville. Foster's grievance was denied on March 22, 2010. The glasses prescribed by Dr. Patterson did not improve Foster's vision in either eye. In his Amended Complaint, Foster alleges that he filed " request slips" with Dr. Patterson six times from January 20, 2011 through March 23, 2011 and three times with Dr. Ghosh from January 13, 2011 through March 8, 2011. (Dkt. No. 76 ¶ 18-19.) Dr. Patterson and Dr. Ghosh deny knowledge of these writings in their Answers. (Dkt. Nos. 77, 78.) Foster's condition did not improve and he filed the present lawsuit on August 17, 2011.

DISCUSSION

I. Standard

A preliminary injunction represents an extraordinary exercise of judicial power, and is one that is " never to be indulged in except in a case clearly demanding it." Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984).[2] Whether such a remedy is appropriate depends upon a two-step inquiry in which the court first analyzes whether a given circumstance meets the necessary threshold, and then balances the risks of harm to each of the parties. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, 549 F.3d 1079, 1085-86 (7th Cir. 2008). To demonstrate that a preliminary injunction is warranted, a plaintiff must show " 1) it has a reasonable likelihood of success on the merits of the underlying claim; 2) no adequate remedy at law exists; 3) it will suffer irreparable harm if the preliminary injunction is denied; 4) the irreparable harm the party will suffer without injunctive relief is ...


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