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Zirko v. Obaisi

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

October 24, 2016

STEVEN ZIRKO, Plaintiff,
v.
DR. SALEH OBAISI, SHERRY BENTON, MARCUS HARDY, MICHAEL LEMKE, ANNA MCBEE, JILL PARRISH, TARRY WILLIAMS, Defendants.

          ORDER

          John J. Tharp, Jr. Judge

         For the reasons stated below, the IDOC defendants' motion to dismiss the second amended complaint for failure to state a claim [45] is granted in part and denied in part. The motion is granted as to Marcus Hardy and granted in part as to Jill Parrish and Michael Lemke. The motion to dismiss is denied as to all other defendants.

         STATEMENT

         Steven Zirko is an inmate at Stateville Correctional Center. Second Am. Compl. (“Compl.”) ¶ 4. In this suit under 42 U.S.C. § 1983, Zirko claims that he has a severe soy allergy that has been deliberately ignored by a variety of Stateville doctors and administrators. The administrators (Sherry Benton, Marcus Hardy, Michael Lemke, Anna McBee, Jill Parrish, and Tarry Williams) have all moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons discussed below, the motion is granted in part and denied in part.

         At the motion to dismiss stage, the Court must determine whether a complaint “state[s] a claim to relief that is plausible on its face.” McCauley v. City of Chi., 671 F.3d 611, 615 (7th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). All factual allegations in the complaint are accepted as true for the purposes of this motion. Id.

         To state a claim for deliberate indifference to medical needs, which includes medically necessary diets, a prisoner must meet both an objective prong and a subjective prong. The objective prong requires that a deprivation must be “sufficiently serious” while the subjective prong requires a “sufficiently culpable state of mind.”[1] Farmer v. Brennan, 511 U.S. 825, 834 (1994). The defendant must have known “of a substantial risk of harm to the inmate and disregarded the risk.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). At the motion to dismiss state, mental state can be alleged generally. See Antonelli v. Sheahan, 81 F.3d 1422, 1429 (7th Cir. 1996); Greeno v. Litscher, 13 F.App'x 370, 375 (7th Cir. 2001). However, a plaintiff must allege more than simply an administrator performing his or her duties, even when those duties include denying grievances. Burks v. Raemisch, 555 F.3d 592, 594-95 (7th Cir. 2009). Instead, the question becomes whether the administrator was simply doing his or her job, such as by relying on medical advice, or whether the administrator acted outside the scope of her duties (either by overreaching or refusing to perform duties). For example, an administrator who removes a prisoner from a prescribed diet has overreached his duty to administer the recommendations of medical staff. See McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016), cert. denied, (U.S. Oct. 3, 2016). On the other end of the spectrum, an administrator who simply shredded grievances without reading them could also be held liable for failing to perform his duties. See Burks, 555 F.3d at 595.

         As an initial matter, the parties dispute whether the Court can also draw facts from Zirko's grievances, which the defendants attached to their motion to dismiss. Zirko discusses these grievances in his complaint, alleging that he filed “at least five grievances pertaining to [his] severe allergic reactions” and that each of the administrators reviewed at least one of these grievances. Compl. ¶ 39-82. In fact, the only activity attributed to each of the administrator defendants is their denial (or concurrence in the denial) of these grievances. See Id. at ¶ 44, 50, 55, 57, 61, 68, 71, 73, 77, 80. Zirko's complaint also references the content of his grievances and the administrators' responses, such as the July 15, 2013 grievance where the complaint states “Defendant McBee denied that Plaintiff's July 15, 2013 grievance was an emergency and denied Plaintiff's request to be on a soy-free diet or submit to an allergy test.” Id. at ¶ 68. The complaint goes on to describe the rationale listed in the denial of the grievance: “Defendant McBee claimed that current medical research does not support a claim that soy diets cause significant medical problems and certainly not at the concentrations it is being served at the Illinois Department of Corrections.” Id. at ¶ 69.

         Zirko suggests that the consideration of these grievances should convert the motion to dismiss into a motion for summary judgment under Rule 56. Pl. Resp. 5. However, the Seventh Circuit has held that “the incorporation-by-reference doctrine provides that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant's 12(b)(6) motion to a motion for summary judgment.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). Generally, a document may be considered by the Court if it is referenced in the complaint, its authenticity is undisputed, and it is central to the plaintiff's claim. See Tierney v. Vahle, 304 F.3d 734, 738-39 (7th Cir. 2002). Here, all three conditions are satisfied. The grievances are each individually referenced for several paragraphs in the complaint, the plaintiff has not raised any authenticity concerns, and the denials of these grievances are the only conduct alleged by these defendants (and so are central to the claims against them). Thus, the discussion below incorporates facts found in both the complaint and the attached grievances. All reasonable inferences are drawn in Zirko's favor. Ashcroft, 556 U.S. at 678.

         A. Marcus Hardy

         Marcus Hardy received and reviewed Zirko's October 10, 2012 emergency grievance regarding his soy allergy. Compl. ¶ 43. In the grievance, Zirko reported that he had suffered his fourth allergic reaction and that medical personnel who witnessed his reaction had administered 50 milligrams of Benadryl, a medication used to relieve the symptoms of allergic reactions. Ex. 2 at 3. Zirko complained that he had not received any Benadryl other than this dose for several months, and requested to see the medical director immediately. Hardy denied the grievance, stating that it did not represent an emergency and that Zirko should submit his grievance through the non-emergency procedures. Id. Nowhere does the grievance specifically say that Zirko's allergy was to soy or mention his request for a soy-free diet or an allergy test; instead he requests “receivership [sic] of necessary medication.” Id.

         With these facts, the Court finds that Zirko has failed to state a claim as to Marcus Hardy. All Hardy did was, quite reasonably, mark that a treated allergy attack was not an emergency. He did not deny treatment to Zirko, change Zirko's prescribed treatment, or in any way prevent Zirko from receiving necessary care. Hardy was aware that medical staff members were treating the reaction, which had at least succumbed enough that Zirko was able to write his grievance. Hardy could not have been aware of an “excessive risk to inmate health” when all he knew was that the urgent problem had been treated and thus was not an emergency. See Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). As the Seventh Circuit has suggested “[i]f a prisoner is under the care of medical experts . . . a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.” Id. at 656. Thus, the defendants' motion to dismiss is granted as to defendant Marcus Hardy.

         B. Sherry Benton

         Sherry Benton, an employee of the Illinois Department of Corrections Administrative Review Board, reviewed the denials of Zirko's November 1, 2012, December 29, 2012, and July 15, 2013 grievances. Compl. ¶ 47, 57, 73. She also denied Zirko's request that she reconsider her decision on the July 15 grievance. Id. at ¶ 75. According to the complaint, Defendant Benton knows that Zirko continues to suffer severe allergic reactions to soy. Id. at ¶ 87.[2] The November 1, 2012 grievance stated that Zirko was suffering from a soy allergy and that Dr. Obaisi had responded “that is an issue for the courts and/or Springfield.” Ex. 3 at 4. Zirko also stated that other inmates received a soy-free diet. Id. at 5. Distressingly, it appears Benton was not sent this 2012 grievance for review until October 2014 and she did not respond until April 2015. Id. at 3. When she responded, Benton marked that the issue had previously been addressed by “this office” on January 30, 2014 and that “no justification [had been] provided for additional consideration.” Id.

         That earlier January 30, 2014 response, paradoxically, had been a review of a later grievance filed on December 29, 2012. Ex. 4 at 2. This grievance indicates that a soy-free diet permit was prescribed by Doctor Obaisi but that unknown administrators were refusing to process the permit.[3]Id. at 4. Benton's response identifies the issue as a soy diet not being adhered to, and denied the grievance because “this office finds the issue was ...


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