Allen v. Ghosh et al

Filing 65

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 2/12/2014:Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT ALLEN,
Plaintiff,
v.
DR. PARTHA GHOSH, DR. LIPING
ZHANG, DR. IMOTEP CARTER,
WEXFORD INC., DR. SALEH OBAISI,
MILLER DOWNS, WARDEN MARCUS
HARDY, AND UNKNOWN AND
UNNAMED DEFENDANTS,
Defendants.

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No. 13 C 00146

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Robert Allen, an inmate at Stateville Correctional Center in Joliet, Illinois, filed this
§ 1983 action against numerous defendants, including Dr. Liping Zhang, alleging that their
deliberate indifference to Allen’s medical issues violates the Eighth and Fourteenth
Amendments. Before the Court now is Dr. Zhang’s motion for summary judgment.
BACKGROUND
A. Undisputed Material Facts
The following facts are taken primarily from Zhang’s Local Rule 56.1(a) statement.
Def.’s 56.1(a) Stmt, Dkt. 25, and supplemented with detail from the sources cited therein. Allen
did not file a response to Zhang’s 56.1(a) statement, nor any statement of additional material
facts pursuant to Local Rule 56.1(b)(3)(C). As a consequence of Allen’s failure to respond to
Zhang’s statement of material facts, all facts in Zhang’s statement are deemed admitted. See
Local Rule 56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving
party will be deemed to be admitted unless controverted by the statement of the opposing

party.”). The Court must still construe those uncontroverted facts in the light most favorable to
Allen, the nonmoving party, as well as draw all reasonable inferences in his favor. See Keeton v.
MorningStar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).
On July 1, 2008, Allen filed a grievance with the Illinois Department of Corrections
alleging that Dr. Zhang refused to treat him for testicular pain prior to July 2, 2008. Def.’s
56.1(a) Stmt. ¶¶ 4–5. Zhang reviewed the grievance and concluded that Allen received proper
treatment for his disorders. Id. ¶ 5. Allen appealed his grievance to the Arbitration Review
Board. Id. ¶ 6. On January 7, 2009, the Administrative Review Board denied Allen’s grievance
after having reviewed it without a formal hearing; it concluded that the issue “was appropriately
addressed by the institutional administration,” that Allen had received medical treatment, and
that claims of misconduct could not be substantiated. Compl. Ex. 2a, Dkt. 7.
On April 19, 2009, Allen wrote a letter to Governor Quinn, further complaining about his
medical concerns and requesting an investigation. Def.’s 56.1(a) Stmt. ¶ 7. Dr. Zhang reviewed
and summarized Allen’s record for Stateville Warden Frank Shaw, to whom the letter was
forwarded for response. Compl. Ex. 3, Dkt. 7. Shaw responded to Allen via letter, writing that he
concurred with the assessment of the medical unit that Allen had received proper medical care.
Compl. Ex. 4a, Dkt. 7. Allen “appealed” Shaw’s findings on July 14, 2009, by writing to the
Administrative Review Board. Def.’s 56.1(a) Stmt. ¶ 8; Compl. Ex. 6, Dkt. 7. Illinois
Department of Corrections Northern Region Deputy Director Eddie Jones, to whom Allen’s
appeal letter was forwarded for response, responded to Allen on August 11, 2009, writing that it
appeared Allen was receiving proper medical attention for his concerns (in effect denying
Allen’s “appeal”). Def.’s 56.1(a) Stmt. ¶ 9. On June 30, 2010, Zhang ceased her employment at
the Stateville Correctional Center for Wexford Health Sources, Inc. Id. ¶ 11. Since that date,

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Zhang has not worked in any capacity at the Stateville Correctional Center and has not been
responsible for any of Allen’s medical care. Id. ¶ 12.
B. Procedural History
On January 8, 2013, Allen brought suit under 42 U.S.C. § 1983, alleging deliberate
indifference of Dr. Zhang—among others—to his medical needs and seeking monetary damages
and other relief. On April 11, 2013, Zhang filed this motion for summary judgment.
DISCUSSION
Dr. Zhang contends that she is entitled to summary judgment because Allen’s § 1983
claim against her is barred by the applicable statute of limitations. “Summary judgment is
appropriate if the evidence demonstrates that there is ‘no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Smith v. Sangamon Cnty. Sheriff’s
Dep’t, 715 F.3d 188, 191 (7th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). A party “may move for summary judgment by
showing . . . that there is an absence of evidence to support the nonmoving party’s case.”
Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013) (quoting Celotex, 477 U.S. at 317)
(internal quotation marks omitted). Although Allen failed to respond to Zhang’s motion for
summary judgment, “a nonmovant’s failure to respond to a summary judgment motion, or failure
to comply with Local Rule 56.1 does not . . . automatically result in judgment for the movant.”
Keeton, 667 F.3d at 884 (citing Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006)).
The moving party “must still demonstrate that [she] is entitled to judgment as a matter of law.”
Id. (citing Raymond, 442 F.3d at 608).
In this case, Zhang asserts that any claim against her is barred by the statute of
limitations. “Section 1983 does not contain an express statute of limitations, so federal courts

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adopt the forum state’s statute of limitations for personal injury claims.” Johnson v. Rivera, 272
F.3d 519, 521 (7th Cir. 2001). In Illinois, the statute of limitations for § 1983 claims is two years.
Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012). The Prison Litigation Reform Act, 42
U.S.C. § 1997e(a), requires that prisoners exhaust their administrative remedies prior to filing
suit under § 1983. “[T]he limitations period is tolled while a prisoner completes the
administrative grievance process.” Gomez, 680 F.3d at 864 (quoting Walker v. Sheahan, 526
F.3d 973, 978 (7th Cir. 2008)) (internal quotation marks omitted); Johnson, 272 F.3d at 521.
Allen alleges that Dr. Zhang refused to treat him for testicular pain at some time in the
period prior to July 2, 2008. Dr. Zhang argues that he did not file suit in time to pursue any
grievances from this period against her. She also argues that although Allen alleges other, later
violations of his rights, none of those later incidents involve actions by Zhang. Allen has not
contested this timeline, nor has he argued that there exists an issue of fact as to whether his initial
administrative grievance involving Dr. Zhang was exhausted on January 7, 2009, when the
Administrative Review Board denied his claim. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466
(7th Cir. 2010) (noting that failure to respond to an argument results in that party waiving their
opposition to it). The viability of Allen’s claim against Zhang therefore hinges on whether it was
brought within two years of this date. Allen filed his complaint on February 1, 2013, far more
than two years after the date of exhaustion. His claim against Zhang is therefore barred by the
statute of limitations, regardless of whether the claims would otherwise be actionable. Finally,
even if Allen’s letter to Governor Quinn—which appears to have taken place outside the usual
avenue for administrative grievances—is considered as a part of the administrative grievance
process that Allen was required to exhaust before filing suit, his “appeal” relating to that letter

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was last denied on August 11, 2009. Allen’s complaint against Zhang, filed more than two years
after this date, is still untimely under a statute of limitations calculation that includes this period.
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For the reasons set forth above, Dr. Zhang’s motion for summary judgment is granted and
the case is terminated as to her alone.

John J. Tharp, Jr.
United States District Judge

Date: February 12, 2014

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