Dorsey v. Ghosh et al
Filing
113
MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 6/3/2015. Mailed notice(ef, ) Modified on 6/3/2015 (ef, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES DORSEY (#R-03996),
Plaintiff,
v.
PARTHASARATHI GHOSH, M.D.,
LATONYA WILLIAMS, IMHOTEP
CARTER, M.D., RONALD SCHAEFER,
M.D., SALEH OBAISI, M.D., MARCUS
HARDY, MICHAEL LEMKE, TARRY
WILLIAMS, and WEXFORD HEALTH
SOURCES, INC., a corporation,
Defendants.
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No. 13-cv-05747
Judge Andrea R. Wood
MEMORANDUM OPINION AND ORDER
Plaintiff James Dorsey, a prisoner of the State of Illinois who is imprisoned at the
Stateville Correctional Center (“Stateville”), has brought this lawsuit alleging that he received
inadequate medical care while incarcerated, in violation of his rights under the Eighth and
Fourteenth Amendments of the United States Constitution. Dorsey has sued several members of
Stateville’s medical staff—Parthasarathi Ghosh, M.D., LaTonya Williams, N.P., Imhotep Carter,
M.D., Ronald Shafer, M.D., and Saleh Obaisi, M.D.—all of whom were employed by Defendant
Wexford Health Sources Inc. (“Wexford,” and collectively with Ghosh, Williams, Carter, Shafer,
and Obaisi, the “Wexford Defendants”). Dorsey also has named as defendants two former
Wardens of Stateville, Marcus Hardy and Michael Lemke, as well as Stateville’s current
Warden, Tarry Williams (“Warden Williams,” and collectively with Lemke, Hardy, and the
Wexford Defendants, “Defendants”).
Hardy and Lemke have filed a motion asking the Court to dismiss Dorsey’s claims
against them (“Motion to Dismiss”). (Dkt. No. 63.) Also before the Court is Dorsey’s motion to
strike affirmative defenses asserted by the Wexford Defendants in their answer to the amended
complaint (“Motion to Strike”). (Dkt. No. 65.) For the reasons set out below, the Motion to
Dismiss is denied and the Motion to Strike is granted in part and denied in part.
BACKGROUND
On August 12, 2013, Dorsey filed this suit against Ghosh, Williams, Carter, and Shafer.
In his initial pro se complaint, Dorsey alleged that those defendants denied him medical care and
treatment in deliberate indifference to his serious medical need caused by a gunshot wound that
he suffered in his youth. Dorsey filed an amended complaint through counsel on April 30, 2014.
This amended complaint elaborated on the factual allegations in the original complaint, and also
added claims against Obaisi, Wexford, Hardy, Lemke, and Warden Williams.
Specifically, in his amended complaint,1 Dorsey alleges that he suffers from chronic pain
in his right knee, ankle, and foot due to the gunshot wound. (Am. Compl. ¶ 15, Dkt. No. 34.)
Dorsey also claims to suffer from chronic back pain; numbness in his chest, arms, and legs; pain
in his groin and rectal area; and blood in his stool. (Id.) In 2006, while detained by the Cook
County Department of Corrections, Dorsey was diagnosed with degenerative joint disease of the
lumbar spine. (Id. ¶¶ 18-19.) He further alleges that after being transferred to Stateville in
October 2007, he complained about his maladies at various times to the Wexford Defendants, but
those defendants did not prescribe him appropriate treatment “due to a custom and practice of
prioritizing cost-cutting over inmates’ medical needs.” (Id. ¶ 21.)
Dorsey alleges that Hardy was the head warden of Stateville from 2010 to 2013, and that
Lemke served in the same position during the year 2013. (Id. ¶¶ 11-12.) During the time periods
when Hardy and Lemke served as head warden, they each were responsible for the operation of
1
For the purposes of the Motion to Dismiss, the Court takes the allegations set forth in Dorsey’s amended
complaint as true and draws all reasonable inferences in Dorsey’s favor. Brown v. Budz, 398 F.3d 904,
908 (7th Cir. 2005).
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Stateville and the welfare of all inmates there, and their job duties included oversight of medical
staff operations. (Id.) Dorsey further alleges, on information and belief, that during their
respective tenures as warden, Hardy and Lemke oversaw daily operations in Stateville’s Health
Care Unit; signed off on permits, grievances and grievance officer responses; approved
outpatient furloughs; and otherwise were personally involved with medical decisions. (Id. ¶ 49.)
Dorsey further alleges, again on information and belief, that the contract between the Illinois
Department of Corrections and Wexford subjects all decisions concerning outpatient medical
treatment to the approval of prison officials, including Hardy and Lemke when they served as
warden. (Id. ¶ 50.)
Between March 2010 and September 2012, Dorsey submitted a number of grievances to
Hardy regarding the inadequate health care he claims to have received from the Wexford
Defendants. Hardy reviewed these grievances. (Id. ¶¶ 23, 26, 35.) In these grievances, Dorsey
complained of pain in his lower back and right leg, reported continuing lack of medical
treatment, and requested various medical treatments. (Id.) Dorsey does not describe Hardy’s
response to each of these grievances in his complaint, but he does allege that Hardy concurred
with and signed a grievance officer’s recommendations of “no action” in response to the
grievances dated July 17, 2011, October 4, 2011, and October 21, 2011. (Id. ¶¶ 30 n.1, 32 n.2,
35.) Similarly, Dorsey alleges that he submitted a number of grievances regarding his medical
care dated between July 13, 2013 and November 2, 2013, and that Lemke reviewed these
grievances. (Id. ¶¶ 42, 43, 45.) Dorsey further alleges that Lemke concurred with and signed a
grievance officer’s recommendations of “no action” in response to Dorsey’s grievances dated
July 13, 2013 and August 7, 2013. (Id. ¶ 43.) Finally, Dorsey alleges that, although Lemke
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reviewed and signed a grievance dated November 2, 2013, Dorsey received no response. (Id.
¶ 45.)
In response to the amended complaint, Hardy and Lemke filed the Motion to Dismiss,
while the Wexford Defendants jointly filed an answer. (Dkt. No. 55.) The Wexford Defendants’
answer asserted four purported affirmative defenses: (1) that the amended complaint fails to state
a claim upon which relief can be granted; (2) that “[t]o the extent plaintiff may be seeking relief
from this defendant in his alleged official capacity, this claim should be dismissed as to the
extent this defendant, as an official of the state, is immune;” (3) that Dorsey failed to exhaust his
administrative remedies; and (4) that Dorsey’s claims are barred by the statute of limitations. In
his Motion to Strike, Dorsey seeks to strike each of these affirmative defenses.
DISCUSSION
I.
Motion to Dismiss
Federal Rule of Civil Procedure 8(a) requires that a complaint contain a short plain
statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a). To
survive a Rule 12(b)(6) motion, this short plain statement must overcome two hurdles. First, the
complaint’s factual allegations must give the defendant fair notice of the claim and the grounds
upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second, the complaint
must contain sufficient allegations based on more than speculation to state a claim for relief that
is plausible on its face. Id. This pleading standard does not necessarily require a complaint to
contain “detailed factual allegations.” Id. (citing Sanjuan v. Am. Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)). Rather, “[a] claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
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that the defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d
720, 728 (7th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Dorsey claims that Defendants violated his Eighth and Fourteenth Amendment rights to
be free from cruel and unusual punishment by acting with deliberate indifference to his serious
medical needs. Section 1983 creates a cause of action against “[e]very person, who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws.” 42 U.S.C. § 1983. Since a § 1983 cause of action must be against
a “person,” in order “[t]o recover damages under § 1983, a plaintiff must establish that a
defendant was personally responsible for the deprivation of a constitutional right.” Johnson v.
Snyder, 444 F.3d 579, 583 (7th Cir. 2006) (overruled on other grounds in Hill v. Tangherlini, 724
F.3d 965 (7th Cir. 2013)). Individuals may be held liable under § 1983 if they caused or
participated in the alleged constitutional deprivation. Flowers v. Velasco, No. 00 C 1708, 2000
WL 1644362, at *4 (N.D. Ill. Oct. 19, 2000) (citing Vance v. Peters, 97 F.3d 987, 991 (7th Cir.
1996)). However, a § 1983 action is predicated on fault and requires that a defendant be
personally involved in some way to be held liable. Pepper v. Vill. of Oak Park, 430 F.3d 805,
810 (7th Cir. 2005). The doctrine of respondeat superior does not apply to actions filed under §
1983. Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Rather, to be held liable for the
actions or omissions of their subordinates, supervisors “must know about the [unconstitutional]
conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might
see.” T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (quoting Jones v. City of Chicago, 856
F.2d 985, 992 (7th Cir. 1988)).
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In the Motion to Dismiss, Dorsey and Lemke argue that, as non-medical prison officials,
they cannot be held liable for Dorsey’s medical care. It is true that generally speaking “[p]rison
directors and wardens are ‘entitled to relegate to the prison’s medical staff the provision of good
medical care.’” Gevas v. Mitchell, 492 Fed. Appx. 654, 660 (7th Cir. 2012) (quoting Burks v.
Raemisch, 555 F.3d 592, 595 (7th Cir. 2009)). However, the Seventh Circuit has recognized that
a prison official may be held liable for deliberate indifference to a prisoner’s serious medical
needs—even when that prisoner is under medical supervision—where that prison official has “a
reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or
not treating) a prisoner.” Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (quoting Hayes v.
Snyder, 546 F.3d 516, 525 (7th Cir. 2008)).
Here, Dorsey alleges that Hardy and Lemke had actual knowledge that the Wexford
Defendants were providing substandard treatment for Dorsey’s various ailments, as they
personally reviewed Dorsey’s grievances regarding the medical care he was receiving. (Am.
Compl. ¶¶ 23, 26, 35, 42, 43, 45, Dkt. No. 34.) Furthermore, Dorsey alleges that Hardy and
Lemke oversaw medical staff operations, that they were personally involved with medical
decisions, and that they approved decisions concerning outpatient medical treatment. (Id. ¶ 49.)
These factual allegations are sufficient, at the pleading stage, to support an inference that Hardy
and Lemke had actual knowledge of Dorsey’s insufficient medical care. Accordingly, Dorsey
states a claim against Lemke and Hardy. See Arnett, 658 F.3d at 755; see also Boyce v. Johnson,
No. 13 C 6832, 2014 WL 3558762, at *3 (N.D. Ill. July 17, 2014) (denying prison warden’s
motion to dismiss when the inmate’s communications to him “claimed that medical personnel
had mistreated him or failed to provide necessary follow-up care”); Zirko v. Ghosh, No. 10 C
08135, 2012 WL 5995737, at *12 (N.D. Ill. Nov. 30, 2012) (allegations that warden received
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numerous grievances and complaints of lack of treatment for severe pain sufficient to state a
claim for deliberate indifference); Young v. Wexford Health Sources, No. 10 C 08220, 2012 WL
621358, at *4 (N.D. Ill. Feb 14, 2012) (denying motion to dismiss warden on deliberate
indifference claim where plaintiff had informed warden that he was being denied access to the
health care unit); Nolan v. Thomas, No. 11 CV 1565, 2011 WL 4962866, at *2-3, 6 (N.D. Ill.
Oct. 19, 2011) (warden’s knowledge of grievance regarding substandard medical care was
sufficient to state claim for deliberate indifference to serious medical need).2
Discovery may establish that Hardy and Ghosh were appropriately deferential to the
treatment provided to Dorsey by medical staff. See Harris v. Ghosh, No. 10 C 7136, 2012 WL
3903894, at *8 (N.D. Ill. Sept. 7, 2012) (granting summary judgment to nonmedical defendants
because record did not show that these defendants’ decision to defer to the judgment of medical
professionals was deliberately indifferent). However, Dorsey has alleged sufficient facts to state
a claim against Hardy and Ghosh at the pleading stage. Accordingly, the Court denies the Motion
to Dismiss. Dorsey’s claims against Hardy and Lemke may go forward.
II.
Motion to Strike
In his Motion to Strike, Dorsey seeks to strike all of the affirmative defenses pleaded in
the Wexford Defendants’ answer. Federal Rule of Civil Procedure 12(f) authorizes a court to
strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). “Affirmative defenses are pleadings subject to the requirements of the
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Hardy and Lemke argue that Dorsey’s claims against them should be dismissed because a deliberate
indifference claim cannot proceed against a warden where there is “no personal involvement by the
warden [in an inmate’s medical care] outside the grievance process.” (Reply at 4, Dkt. No. 82 (quoting
Gevas, 492 Fed. Appx. at 660 (7th Cir. 2012).) However, Dorsey’s allegations that Hardy and Lemke
received numerous notifications that Dorsey was suffering from serious medical issues, and that both had
extensive personal responsibility over the provision of medical services, distinguish the instant case from
Gevas and the district court cases that Hardy and Lemke cite in further support of this argument.
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Federal Rules of Civil Procedure.” Nationwide Advantage Mortg. Co. v. Mortg. Servs. III, LLC,
No. 13 C 83, 2013 WL 2403654, at *1 (N.D. Ill. May 31, 2013). Thus, affirmative defenses must
comply with Federal Rule of Civil Procedure 8 and set forth a “short and plain statement” of the
basis for the defense. Id. (quoting Fed. R. Civ. P. 8). The sufficiency of an affirmative defense is
evaluated under a standard identical to Federal Rule of Civil Procedure 12(b)(6). Id. Thus, “an
affirmative defense must include either direct or inferential allegations as to all elements of the
defense asserted.” Reis Robotics USA, Inc. v. Concept Indus., Inc., 462 F. Supp. 2d 897, 904
(N.D. Ill. 2006).3 As a practical matter, however, affirmative defenses rarely will be as detailed
as a complaint (or a counterclaim); nor do they need to be in most cases to provide sufficient
notice of the defense asserted. But a problem arises when a party asserts boilerplate defenses as
mere placeholders without any apparent factual basis.
The Wexford Defendants’ First Affirmative Defense states the standard for a deliberate
indifference claim and declares that Dorsey has failed to allege facts sufficient to state a cause of
action as to the Wexford Defendants. (Wexford Defs.’ Ans. at 6-7, Dkt. No. 55.) There is some
controversy in this District regarding whether failure to state a claim may be raised as an
affirmative defense. See Reis Robotics, 462 F. Supp. 2d at 905. However, even assuming that
failure to state a claim may be raised as an affirmative defense, the Wexford Defendants have
plainly failed to satisfy the pleading standard under Federal Rule of Civil Procedure 8, as the
First Affirmative Defense provides no explanation as to how Dorsey has failed to state a claim.
See id. The Court also notes that the Wexford Defendants did not file a motion to dismiss the
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The Wexford Defendants argue that the heightened pleading standard established in Twombly and Iqbal
does not apply to pleading in affirmative defenses. (Resp. to Mot. to Strike at 1-3, Dkt. No. 75.) The
Court notes that “the majority view [is] that Twombly and Iqbal apply to affirmative defenses.” Shield
Tech. Corp. v. Paradigm Positioning, LLC, No. 11 C 6183, 2012 WL 4120440, at *8 (N.D. Ill. Sept. 19,
2012).
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complaint pursuant to Rule 12(b)(6), which might have shed light on the basis for the purported
defense. Accordingly the First Affirmative Defense is stricken without prejudice.
The Wexford Defendants’ Second Affirmative Defense states, in its entirety, that “[t]o
the extent plaintiff may be seeking relief from this defendant in his alleged official capacity, this
claim should be dismissed as to the extent this defendant, as an official of the state, is immune.”
(Wexford Defs.’ Ans. at 6-7, Dkt. No. 55.) The affirmative defense does not explain which of the
five moving defendants claims to be an official of the state, why that defendant is an official of
the state, or the claimed basis for or extent of that defendant’s immunity. At a minimum, the
defense must identify which of the moving defendants is “this defendant.” Accordingly, the
Second Affirmative Defense is stricken without prejudice.
The Wexford Defendants’ Third Affirmative Defense states, in its entirety, that Dorsey’s
Amended Complaint “is barred, in that plaintiff failed to properly exhaust his administrative
remedies prior to the filing of this litigation” pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008). While this defense contains no detailed factual allegations, the Court finds that it is
nonetheless sufficient to put Dorsey on notice of the nature of the defense that is being raised.
The process for exhausting administrative remedies is definite and known to the parties in this
case. Dorsey himself pleaded facts in his amended complaint regarding his efforts to seek relief
through administrative channels. (See, e.g., Am. Compl. ¶¶ 30 n.1, 32 n.2, 35, 42, 43, Dkt. No.
34.) Thus, the Wexford Defendants’ Third Affirmative Defense may fairly be understood as
challenging whether the steps that Dorsey claims to have taken occurred as he says they did and,
if so, whether they were sufficient to exhaust his administrative remedies. While Dorsey might
desire more information from the Wexford Defendants, such information may be explored
during discovery. The Court further notes that much of the information necessary to determine
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the exhaustion issue is likely to be in the possession of the Illinois Department of Corrections.
Thus, the Wexford Defendants would be expected to need some discovery themselves to flesh
out the details of their defense and thus they will be granted to some leeway with respect to their
pleading.
Finally, the Wexford Defendants’ Fourth Affirmative Defense states, in full, that
Dorsey’s amended complaint “violates the applicable two year statute of limitations as applied to
the alleged acts of this defendant.” In contrast to the exhaustion issue, the basis for any purported
statute of limitations defense is completely unknown. The Wexford Defendants’ answer does not
reveal any information about what action they believe Dorsey should have taken sooner than he
did. Furthermore, it is unclear whether the defense is asserted by one, some, or all of the
Wexford Defendants as they again fail to specify which of them is the referenced “this
defendant.” Thus, the bare-bones pleading of the Wexford Defendants’ Fourth Affirmative
Defense cannot stand, as the Wexford Defendants plead no facts that would raise either defense
beyond a speculative level. See Employers Mut. Cas. Co, 2009 WL 2567977, at *2. Accordingly,
the Fourth Affirmative Defense is stricken without prejudice.
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CONCLUSION
For the foregoing reasons, the Motion to Dismiss is denied. Hardy and Lemke shall
answer the amended complaint by June 24, 2015. The Motion to Strike is granted in part and
denied in part. The First, Second, and Fourth Affirmative Defenses are stricken without
prejudice. The Wexford Defendants may amend their answer to re-plead their affirmative
defenses by June 24, 2015, should they be able to do so consistent with Federal Rule of Civil
Procedure 11.
ENTERED:
Dated: June 3, 2015
__________________________
Andrea R. Wood
United States District Judge
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