United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN, UNITED STATES DISTRICT JUDGE.
Sorrentino, an inmate in the custody of the Illinois
Department of Corrections at Stateville Correctional Center,
alleges that Stateville staff and medical service providers
violated the Eighth Amendment by their deliberate
indifference to a kidney stone he suffered from. See
R. 49. The Court previously addressed this case in an opinion
granting defendant Wexford Health Sources's motion to
dismiss Sorrentino's claims against it in the first
amended complaint. See R. 38. Defendant Warden Randy
Pfister answered the first amended complaint rather than
seeking its dismissal. See R. 31.
granting Wexford's motion to dismiss, the Court permitted
Sorrentino to replead claims against Wexford in a second
amended complaint. See R. 48. In a reversal of their
responses to the first amended complaint, Wexford answered
the second amended complaint, see R. 52, while
Warden Pfister has moved to dismiss the claims against him
for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). See R. 50.
opposition to Warden Pfister's motion, Sorrentino first
makes an argument based on procedure. Sorrentino relies on a
legal treatise to argue, “The filing of an amended
complaint will not revive the right to present by motion
defenses that were available but were not asserted in a
timely fashion prior to the amendment of the pleading.”
R. 54 at 2 (quoting Wright & Miller, 5C Fed. Prac. &
Proc. Civ § 1338 (3d ed.)). On this basis, Sorrentino
argues that since his second amended complaint did not change
his allegations or claims against Warden Pfister, Warden
Pfister's answer to the first amended complaint remains
operative. And since the Warden's answer to the first
amended complaint remains operative, Sorrentino argues that
the Warden's Rule 12 motion to dismiss the second amended
of whether Warden Pfister's answer to the first amended
complaint remains operative, the Warden's motion is
properly made. It is true that Rule 12(b) provides that a
motion to dismiss for failure to state a claim “must be
made before pleading.” And it is also true that Rule
12(h)(1) provides that “any defense listed in
Rule12(b)(2)-(5)” is waived by failing to
“include it in a responsive pleading.” But Rule
12(h)(2) provides that a motion to dismiss for failure to
state a claim is not waived despite the filing of an answer,
but can be made pursuant to Rule 12(c) “[a]fter the
pleadings are closed.” So whether Warden Pfister should
be permitted to move to dismiss under Rule 12(b)(6) is
irrelevant, because this motion can simply be styled as a
motion under Rule 12(c). “The misstyling does not alter
our analysis.” Alioto v. Town of Lisbon, 651
F.3d 715, 718 (7th Cir. 2011) (“The defendants styled
them Rule 12(b)(6) motions, but in reality the motions were
for judgment on the pleadings, Fed.R.Civ.P. 12(c), because
the defendants filed answers.”).
the substance of Sorrentino's claim, Warden Pfister
argues that Sorrentino has insufficiently alleged that he was
personally involved in Sorrentino's care, see R.
50 at 3, which is a necessary allegation to state a claim for
deliberate indifference. See Arnett v. Webster, 658
F.3d 742, 755 (7th Cir. 2011). In opposition, Sorrentino
argues that his allegation that Warden Pfister “was
personally informed of Mr. Sorrentino's serious medical
conditions through several emergency grievances that Mr.
Sorrentino submitted in 2015 and 2016 detailing the blood
found in his urine and his kidney pain, ” R. 49 ¶
21, meets this standard. See R. 54 at 5-6.
Specifically, Sorrentino alleges that he submitted such
grievances dated May 25, 2015; June 15, 2015; November 3,
2015; November 15, 2015; December 30, 2015; February 22,
2016; and August 16, 2016. R. 49 ¶ 21.
mere fact that a prison official, like a warden, gained
knowledge of an inmate's medical condition through
grievance communications generally will be insufficient to
plausibly allege that the prison official was deliberately
indifferent to the inmate's condition. This is because
prison officials “will generally be justified in
believing that the prisoner is in capable hands, ” and
in “rely[ing] on the expertise of medical
personal.” Arnett, 658 F.3d at 755. However,
if the plaintiff can “demonstrate that the
communication, in its content and manner of transmission,
gave the prison official sufficient notice to alert him or
her to an excessive risk to inmate health or safety, ”
then the plaintiff has plausibly alleged a deliberate
indifference claim against the prison official. Id.
In other words, “[n]on-medical defendants cannot simply
ignore an inmate's plight.” Id.
attached his grievance documents to his first amendment
complaint, and so the Court properly considers their contents
on this motion.Warden Pfister contends that these
documents undermine Sorrentino's allegation that Warden
Pfister was deliberately indifferent to Sorrentino's
medical condition. The Court agrees with the Warden's
interpretation of some of these documents. But not all.
although neither party notes this fact, Warden Pfister did
not become Stateville's warden until November 12, 2015.
See Illinois Department of Corrections Release,
(last visited Oct. 18, 2017). Thus, he could not have received
the grievances dated May 25, 2015, and June 15, 2015. In
fact, the grievances were signed by Tarry Williams, Warden
Pfister's predecessor. See R. 23-1 at 12, 18.
For this reason, these two grievances cannot serve as a basis
to allege Warden Pfister's individual liability based on
notice of Sorrentino's condition.
also filed grievances on November 3 and 15, 2015. Although
the November 3 grievance was submitted prior to Warden
Pfister's start date, he received it after he started and
signed it on November 18, 2015. R. 23-1 at 3. He also signed
the November 15 grievance on November 25, 2015. R. 23-1 at 5.
In those grievances, Sorrentino sought a CT scan that had
been prescribed to help diagnose his condition. Id.
at 4, 6. But Sorrentino's medical records, some of which
are also attached to his first amended complaint, show that
he received the CT scan on November 19, 2015. Id. at
38; see also R. 49 ¶ 25 (alleging the
Sorrentino received the CT scan in “November
2015”). Assuming Warden Pfister took no action in
response to Sorrentino's grievances of November 3 and 25,
he was justified in doing so by the fact that Sorrentino
received the CT scan that he sought in his grievances. Thus,
the November 3 and 15 grievances cannot serve as a basis to
plausibly allege that Warden Pfister was deliberately
indifferent to Sorrentino's condition.
Sorrentino filed a grievance on August 16, 2016, complaining
that the temporary stent in Sorrentino's kidney had not
been removed. See R. 23-1 at 10. Warden Pfister
received the grievance on August 24, 2016. Id. By
that time, Sorrentino's stent had been removed on August
22. See id.; see also R. 49 ¶ 30
(alleging that the stent was removed “five weeks”
after July 12, 2016). By the time Warden Pfister received
notice of the stent issue, there was nothing else he could do
to address the grievance beyond what the medical
professionals already had done.
submitted the last two grievances he alleges provided Warden
Pfister notice of his condition on December 30, 2015 and
February 22, 2016. See R. 23-1 at 7, 15. Warden
Pfister argues that these grievance documents undermine the
plausibility of the allegations against him because they
appear to have been sent to the Health Care Unit rather than
Warden Pfister, and Warden Pfister did not sign them.
Id. But further review of the records Sorrentino
attached to his first amended complaint shows that they
contain additional grievance records with dates that
Sorrentino did not specifically mention in his complaint.
Warden Pfister signed a document on January 15, 2016 in which
Sorrentino complains that he has been experiencing pain and
blood in his urine for over a year. R. 23-1 at 17. Then three
months later, Warden Pfister signed another document on April
8, 2016. See R. 23-1 at 9. Warden Pfister plausibly
signed this document in response to Sorrentino's
grievance of February 22, 2016, in which he complained that
he continued to experience pain and blood in his urine, and
that he had not received treatment since November 2015.
Id. at 7. Considering the seriousness of urinating
blood, and the alleged delay in addressing that condition,
these documents support the plausibility of Sorrentino's
allegation that Warden Pfister was deliberately indifferent
to his medical condition.
these reasons, Warden Pfister's motion to dismiss