Gallo v. Ghosh et al

Filing 136

MEMORANDUM OPINION AND ORDER: Signed by the Honorable Harry D. Leinenweber on 10/10/2013:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CARL GALLO, JR.,
Plaintiff,
Case No. 08 C 6974

v.

Hon. Harry D. Leinenweber

DR. PARTHA GHOSH, LATANYA
WILLIAMS, and WEXFORD HEALTH
SOURCES, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion for Summary
Judgment.

For the reasons stated herein, the Motion is granted in

part and denied in part.
I.

BACKGROUND

This case arises out of allegedly inadequate medical treatment
by prison doctors.

At all times relevant to this case, Plaintiff

Carl Gallo, Jr. was incarcerated by the state of Illinois and
confined at Stateville Correctional Center (“Stateville”).

While

there, he received medical treatment from Defendant Wexford Health
Services, a prison contractor.

Defendant Dr. Partha Ghosh (“Dr.

Ghosh”) was the Medical Director at Stateville.

Defendant LaTanya

Williams (“Williams”) was a physician’s assistant at Stateville.
The facts recited herein are undisputed unless otherwise noted.

Plaintiff

suffers

from

esophageal reflux disease.

ulcerative

colitis

and

gastro

Plaintiff was transferred from another

prison to Stateville in August 2006, and he first met with Dr.
Ghosh on October 30, 2006.

Dr. Ghosh, who lacked expertise in

treating ulcerative colitis, referred Plaintiff to an outside
specialist.

Dr. Ghosh retained responsibility for prescribing

medications.
Plaintiff saw that outside specialist on November 22, 2006.
The specialist recommended that Plaintiff receive a colonoscopy and
“start PPI (prevacid qd 30 mg).”

“PPI” stands for “protein-pump

inhibitor,” a class of medications used to decrease the body’s
production of gastric acid.

Prevacid is a PPI.

Five days later, Plaintiff returned to Dr. Ghosh, who noted
and approved all of the specialist’s findings and recommendations
but did not write the prescription.
Ghosh

prescribed

Prilosec,

a

On December 20, 2006, Dr.

different

but

pharmacologically

identical PPI. Prilosec is a “formulary” drug, which means that it
is on an approved list of medications that patients can receive if
prescribed.

Prilosec is cheaper than Prevacid, a non-formulary

drug. Wexford has a process by which physicians like Dr. Ghosh can
request that Wexford approve a non-formulary drug.
The
December

specialist
27,

prescriptions:

2006.

performed
The

a

colonoscopy

specialist

and

recommended

endoscopy
a

trio

on
of

Prednisone and Mesalamine for Plaintiff’s colitis,

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and Prevacid

for

his esophagitis

and duodenitis.

Dr.

Ghosh

prescribed Prevacid on January 3, 2007, and two days later noted
and approved all of the specialist’s findings and recommendations.
Plaintiff went back to the specialist on January 17, 2007, who this
time

recommended

enemas,

that

mesalamine,

and

Plaintiff

receive

Prevacid.

Dr.

steroids,
Ghosh

proctofoam

approved

these

recommendations, and it is reasonable to infer from the record that
he wrote the prescriptions as well.
In his deposition, Plaintiff testified that he received the
wrong medication after the January 17 appointment.

Specifically,

he says he was given proctofoam cream for hemorrhoids instead of
the proctofoam enema for ulcerative colitis that was prescribed to
him.

He testified further that he could not take some of the

medications he did receive – and that he sought alternatives –
because the medications he was taking aggravated his symptoms.
Plaintiff sought help from Defendants so that he could get the
correct medication, replace other medications that aggravated his
symptoms, and relieve the severe pain and discomfort caused by his
condition. Plaintiff raised his concerns by mailing letters to Dr.
Ghosh, filing administrative grievances, and hand-delivering dozens
of

letters

testified

to
that

medical
those

staff,
letters

including
and

Williams.

requests

were

Plaintiff
ignored.

Plaintiff’s deposition testimony suggests that there may have been
an unofficial policy of nurses ignoring requests in the “sick box.”

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Defendants, for their part, cannot recall any complaints, letters,
or grievances.

It took Plaintiff eight months to get back to see

a doctor, at which point his treatment appears to have resumed.

In

his brief opposing the Motion for Summary Judgment, Plaintiff does
not take issue with his treatment since August 2007.
II.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a).

The Court construes all facts and draws all reasonable inferences
in favor of the non-moving party.

Ricci v. DeStefano, 557 U.S.

557, 586 (2009).
III.

ANALYSIS

“Prison officials violate the Eighth Amendment’s proscription
against cruel and unusual punishment when they display ‘deliberate
indifference to serious medical needs of prisoners.’”

Greeno v.

Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)).

Defendants do not contest the

seriousness of Plaintiff’s medical condition.

The sole issue

before the Court is whether Defendants acted with deliberate
indifference.
The “deliberate indifference” inquiry requires a subjective
analysis of whether “prison officials acted with a sufficiently
culpable state of mind.”

Farmer v. Brennan, 511 U.S. 825, 834
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(1994). Deliberate indifference requires more than negligence, but
a prisoner need not establish that officials intended or desired
the harm that transpired.

Id. at 835.

Officials can be held

liable only if they knew of and disregard a “substantial risk of
harm to the inmate.”
A.

Greeno, 414 F.3d at 653.
Defendants Ghosh and Williams

Plaintiff’s deliberate indifference claim against Defendants
Ghosh and Williams stands on three legs:

(1) the nearly one month

delay in getting the PPI; (2) the prescription for Prilosec instead
of Prevacid; and (3) the lack of response to his complaints about
the need for different medications and follow-up treatment.
The length of delay in treatment that is tolerable “depends on
the

seriousness

treatment.”

of

the

condition

and

the

ease

of

providing

McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).

In one case, the Seventh Circuit held that a day and a half was too
long of a delay in treatment for a painful broken nose.
v. Anderson, 538 F.3d 763, 778-80 (7th Cir. 2008).

Grieveson

Similarly, a

two-day delay in treatment for an open dislocated finger would be
evidence of deliberate indifference.
827, 831 (7th Cir. 2007).

Edwards v. Snyder, 478 F.3d

However, courts in this District have

granted summary judgment for prison officials where “the record
does not suggest that expedited [treatment] would have ameliorated
[the Plaintiff]'s suffering or condition.”

See, Thomas v. Clay,

No. 08-CV-4456, 2010 WL 2136663, at *10 (N.D. Ill. May 25, 2010).
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The record reflects that Dr. Ghosh met with Plaintiff on
November 27, five days after the specialist recommended that
Plaintiff be prescribed a PPI.

But it was not until December 20

that Dr. Ghosh wrote the prescription.

It is reasonable to infer

that Plaintiff’s suffering would have been ameliorated if Dr. Ghosh
had issued the prescription on November 27, instead of December 20.
Defendants have presented no justification for the delay and no
facts

regarding

the

ease

or

difficulty

prescription at the November 27 appointment.

of

providing

that

Meanwhile, Plaintiff

was suffering from a painful condition that caused him severe
discomfort. A reasonable jury could view this delay as evidence of
Dr. Ghosh’s deliberate indifference to Plaintiff’s serious medical
need.

On this issue, the Motion for Summary Judgment is denied.

Plaintiff

argues

that

Dr.

Ghosh

displayed

deliberate

indifference when he prescribed Prilosec instead of Prevacid.

As

mentioned above, Prilosec and Prevacid are both PPIs, but Prilosec
is cheaper than Prevacid, and Dr. Ghosh must go through a special
approval process with Wexford to prescribe Prevacid.

Plaintiff

argues that the specialist recommended Prevacid specifically, but
Defendants insist that the specialist mentioned Prevacid as just an
example of a PPI.
Medical professionals are entitled to deference in treatment
decisions unless the decision at issue was a substantial departure
from accepted professional practice.

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Sain v. Wood, 512 F.3d 886,

894-95 (7th Cir. 2008).

Even accepting Plaintiff’s interpretation

of the specialist’s note, Plaintiff has not established that Dr.
Ghosh

departed

from

accepted

prescribed Prilosec instead.

professional

practice

when

he

Plaintiff did establish that some

patients experience minor side effects to some PPIs but not to
others, but Plaintiff fails to show that such different reactions
could be anticipated by a prescribing doctor. Plaintiff bears this
burden because it is an issue on which he would have the burden at
trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Moreover, this Court has not been presented with evidence that
Prevacid

and

prescribing

Prilosec

one

over

are

materially

another

deliberate indifference.

would

different,

amount

to

such

a

that

showing

of

To the contrary, Plaintiff’s own expert

testified that the two drugs are “pharmacologically identical.”
Defs.’s L.R. 56.1 St. of Facts, Ex. D at 55.
no

genuine

dispute

as

to

whether

Dr.

This Court discerns

Ghosh

was

deliberately

indifferent when he prescribed Prilosec instead of Prevacid. As to
this issue, the Defendants’ Motion for Summary Judgment is granted.
The evidence that Defendants ignored numerous letters and
administrative

complaints

is

perhaps

Plaintiff’s

strongest

indication of deliberate indifference, particularly when viewed in
the light most favorable to Plaintiff as the non-moving party.
Plaintiff
unofficial,

used
and

every

channel

still

had

he

could,

difficulty

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both

official

and

garnering

attention

and

obtaining the correct medication.

If Plaintiff received the wrong

medication, Defendants should have acted swiftly to rectify that
problem.

At the very least, these facts present a genuine dispute

as to whether Defendants knew of and disregarded a substantial risk
of harm to Plaintiff.

On this issue, the Motion for Summary

Judgment is denied.
Defendants

point

to

considerable

received adequate medical treatment.

evidence

that

Plaintiff

Plaintiff does not appear to

dispute that, on many occasions, that was the case.

But Plaintiff

can prove an Eighth Amendment violation through isolated incidents
of

inadequate

indifference.

treatment

fact

finder

to

the

level

of

deliberate

Indeed, “a prisoner is not required to show that he

was literally ignored.”
Cir. 2000).

rising

Sherrod v. Lingle, 223 F.3d 605, 611 (7th

Plaintiff provides enough evidence for a reasonable
to

conclude

that

Defendants

indifferent” to Plaintiff’s medical needs.

were

“deliberately

As to Defendants Ghosh

and Williams, the Motion for Summary Judgment granted with respect
to Dr. Ghosh’s decision to prescribe Prilosec instead of Prevacid,
but denied as to the other issues raised.
B.

Defendant Wexford

Plaintiff seeks to hold Wexford, a corporate defendant, liable
for its policies and practices that led to the constitutional
violation. In particular, Plaintiff points to Wexford’s failure to
establish systems to ensure that medications got to patients once

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they were prescribed.

The weight of authority suggests that

corporations can be held liable under § 1983.

In this case, a

§ 1983 claim against a corporation is analogous to a § 1983 claim
brought against a municipality because the corporation is standing
in the government’s shoes to carry out a government program. Dubbs
v. Head Start, Inc., 336 F.3d 1194, 1216 & n.13 (10th Cir. 2003)
(collecting cases). Thus, a corporate entity acting under color of
law violates a detainee’s constitutional rights “if it maintains a
policy that sanctions the maintenance of prison conditions that
infringe upon the constitutional rights of the prisoners.”

Estate

of Novack ex rel. Turbin v. Cnty. of Wood, 226 F.3d 525, 530 (7th
Cir. 2000).
Plaintiff suggested in his deposition that there may have been
an unofficial policy of nurses ignoring requests in the “sick box.”
Pl.’s L.R. 56.1 St. of Facts, Ex. G at 16-17.

If that were not

enough, Plaintiff need not establish that actions were taken
pursuant to an official policy.

Rather, it is sufficient to

show[] a series of bad acts and invit[e] the
court to infer from them that the [Defendant]
was bound to have noticed what was going on
and by failing to do anything must have
encouraged or at least condoned, thus in
either event adopting, the misconduct of
subordinate officers.
Estate of Novack ex rel. Turbin, 226 F.3d at 531.
Plaintiff

has

provided

evidence

that

his

persistent

complaints, letters, and administrative grievance filings were

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ignored.

Such misconduct on the part of Wexford’s “subordinate

officers” could constitute a “series of bad acts” from which a fact
finder could infer that Wexford “must have encouraged or at least
condoned, thus in either event adopting” that misconduct.
Thus

there

participated

remains
in

a

any

genuine

dispute

constitutional

as

to

violation

whether
by

Id.

Wexford

condoning

an

unofficial policy of ignoring sick box requests or by failing to
correct misconduct that it was bound to have known about.

As to

Defendant Wexford, the Motion for Summary Judgment is denied.
IV.

CONCLUSION

For the reasons stated herein, the Defendants’ Motion for
Summary judgment is granted in part and denied in part.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date: October 10, 2013

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