Laskowski v. Chandler et al

Filing 107

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 2/12/2018: For the following reasons, defendant Bessie Dominguez's motion to dismiss 73 is denied. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 2/12/2018. Electronic notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Martin Donald Laskowski,
Plaintiff,
v.
Nedra Chandler, et al.,
Defendants.

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Case No. 13 CV 50392
Judge Philip G. Reinhard

ORDER
For the following reasons, defendant Bessie Dominguez’s motion to dismiss is
denied.
STATEMENT-OPINION
Plaintiff Martin Donald Laskowski’s first amended complaint brings suit against
Andrew J. Schott, an Illinois Department of Corrections’ (“IDOC”) employee, and Bessie
Dominguez, a physician at IDOC’s Dixon Correction Center (“DCC”) [61]. Plaintiff
alleges defendants were deliberately indifferent to his serious medical needs in violation
of 42 U.S.C. § 1983. Id. Specifically, plaintiff complains he suffered permanent brain
damage as a direct result of defendant Schott failing to obtain emergency medical
assistance to him while he lay in an unresponsive state on the floor of his cell, and of
defendant Dominguez refusing to prescribe to him adequate pain medication. Id. On
October 27, 2017, defendant Dominguez filed a motion to dismiss plaintiff’s first
amended complaint as against her [73]. On November 22, 2017, plaintiff filed his
response [88], and on December 22, 2017, defendant Dominguez filed her reply [92].
I. Standard of Review

When evaluating a Rule 12 (b)(6) motion to dismiss, the court must “accept[] all
well-pleaded facts as true and draw[] all reasonable inferences in favor of the . . . nonmoving parties.” Bonnstetter v. City of Chicago, 811 F.3d 969, 973 (7th Cir. 2016)
(internal citations omitted). “A Rule 12(b)(6) motion challenges the sufficiency of the
complaint itself.” Id. “To state a claim, a complaint must first provide ‘a short and plain
statement of the claim showing that the pleader is entitled to relief.’” Id. (citing FED. R.
CIV. P. 8(a)(2)). “The statement of the claim must sufficiently give ‘fair notice of what
the ... claim is and the grounds upon which it rests’ to the defendants.” Id. (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To state a claim for relief, a
complaint must provide more than ‘abstract recitations of the elements of a cause of
action or conclusory legal statements.’ Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

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Instead, a plausible claim must include ‘factual content’ sufficient to allow 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).” Charleston v. Board of Trustees of
University of Illinois at Chicago, 741 F.3d 769, 772 (7th Cir. 2013). “[A] well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556.
The complaint must instead call for “enough facts to raise a reasonable expectation that
discovery will reveal evidence” supporting plaintiff’s claims. Id.
II. Factual Background
The following facts are taken from plaintiff’s amended complaint.
Plaintiff, Martin Laskowski, was incarcerated at the DCC in March of 2012
through March of 2017. [61] at 1, 5. In the early morning hours of March 21, 2012,
plaintiff lost consciousness and collapsed on the floor of his cell, presumably from an
overdose of medication he received from health care providers at DCC. Id. at 2.
Defendant Schott observed plaintiff on the floor of his cell but failed to provide him
immediate medical attention and left him unresponsive in his cell for approximately an
hour. Id. at 3. During that hour, plaintiff was denied oxygen and consequently suffered
permanent brain damage. Plaintiff was eventually placed on an oxygen rebreather and
was transported to the emergency room of a nearby hospital. Id. Plaintiff was then
hospitalized for approximately three weeks – much of that time in a comatose state. Id. at
4.
Prior to plaintiff’s incarceration, plaintiff suffered multiple back injuries resulting
in chronic pain. Id. Plaintiff also had been diagnosed with a spinal tumor, underwent a
partial lobectomy of his lung, and underwent a spinal fusion surgery. Plaintiff endured
the chronic back pain during his stay at DCC. Id. at 5. Before arriving at DCC,
plaintiff’s back condition was treated by medical professionals, including a pain
management specialist, who prescribed narcotic pain medication, including OxyContin,
for many years. Defendant Dominguez, as a treating physician at DCC, was aware of
plaintiff’s serious back condition and chronic pain, but refused to provide him with an
effective course of treatment. Id. Defendant Dominguez only provided plaintiff with
Tylenol and Ibuprofen, knowing that this course of treatment would be ineffective to treat
plaintiff’s back condition and chronic pain. Id. at 6. Despite plaintiff’s requests to
receive more effective treatment, defendant Dominguez refused. Due to defendant
Dominguez’s refusal to effectively treat plaintiff, plaintiff experienced unnecessarily
intense and prolonged pain from at least October 25, 2012, through December 24, 2012.
Id.
III. Procedural History
On December 23, 2013, plaintiff filed his original pro se complaint [1]. On May
28, 2014, the court granted plaintiff’s motion to stay this proceeding (and
administratively closed the case) pending the outcome of plaintiff’s case filed with the

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Illinois Court of Claims, which addressed issues identical to the issues raised in this
matter [16]. The stay was lifted three years later on May 5, 2017, after the Illinois Court
of Claims dismissed plaintiff’s action [44]. Plaintiff, through appointed counsel, filed his
first amended complaint on August 28, 2017 [61]. Defendants Dominguez’s motion to
dismiss (and parties’ briefs) followed.
IV. Analysis
A.

Deliberate Indifference

Defendant Dominguez argues in her motion to dismiss that plaintiff has failed to
state a cause of action against her because a disagreement over her medical judgment
does not rise to a constitutional violation. She argues she was not deliberately indifferent
to plaintiff’s serious medical needs. In response, plaintiff states his complaint sufficiently
alleges defendant Dominguez was aware of plaintiff’s serious medical condition and
disregarded it by providing him with ineffective treatment.
“The Eighth Amendment safeguards the prisoner against a lack of medical care
that ‘may result in pain and suffering which no one suggests would serve any penological
purpose.’” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009)
(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state a claim based on
inadequate medical care, a plaintiff must allege an objectively serious medical condition
and an official’s deliberate indifference to that condition. Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011). “Deliberate indifference may occur where a prison official,
having knowledge of a significant risk to inmate health or safety, administers ‘blatantly
inappropriate’ medical treatment.” Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir. 2015)
(quoting Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)).
In his amended complaint, plaintiff alleges that defendant Dominguez refused to
prescribe to him narcotic pain medication that he had taken in the past and, instead, only
gave him Tylenol and Ibuprofen to alleviate his chronic back pain. Defendant
Dominguez maintains plaintiff’s suit is nothing more than an “inappropriate attempt to
turn a court of law into a doctor’s office.” [73] at 5. Defendant Dominguez notes that
courts have held that the propriety of a course of medical treatment of an inmate does not
rise to the level of an appropriate action under Section 1983. Defendant Dominguez cites
to Estelle to support her position. In Estelle, the prison doctors treated plaintiff’s back
strain (following an injury while performing a prison work assignment) with bed rest,
muscle relaxants and pain relievers. Estelle, however, argued more should have been
done by way of diagnosis and treatment, such as an X-ray. There, the Supreme Court
agreed with the doctor stating “the question whether an X-ray or additional diagnostic
techniques or forms of treatment is indicated is a classic example of a matter for medical
judgment.” Estelle, 429 U.S. at 107. Additionally, defendant Dominguez argues plaintiff
cannot meet the high standard of deliberate indifference in order to state a claim. For this
position, defendant Dominguez cites to Estate of Cole by Pardue v. Fromm, 94 F.3d 254
(7th Cir. 1996). There, the Seventh Circuit affirmed the district court’s granting of
summary judgment against the estate of a pre-trial inmate who committed suicide at the
jail, noting that deliberate indifference may be inferred “when the medical professionals

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decision is such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate the person responsible did not base the decision on such a
judgment.” Id. at 261-62. The court finds defendant Dominguez’s position and
supporting case law distinguishable from plaintiff’s claims. Neither Estelle nor Estate of
Cole by Pardue addresses the specific case of a prison doctor’s refusal to provide an
inmate with effective medicine previously prescribed by an outside specialist.1
Plaintiff’s complaint is more analogous to Arnett. In Arnett, plaintiff, a federal
inmate in Indiana, suffered from rheumatoid arthritis and was being treated by a specialist
for his condition with a specific prescription medication prior to his incarceration. His
prior medication was successful in controlling his condition. Once incarcerated, plaintiff
received some medication, but not the medication he was receiving from his specialist.
Arnett, 658 F.3d at 745-46. According to Arnett’s allegations, he informed the prison
doctor that the medication he was receiving was not effective, but the doctor persisted in
his course of treatment. The Seventh Circuit held “[a]lthough the defendants provided
[Arnett] pain medicine, a medical professional’s actions may reflect deliberate
indifference if he ‘chooses an easier and less efficacious treatment without exercising
professional judgment.’” Id. at 754 (citing McGowen v. Hulick, 612 F.3d 636, 641 (7th
Cir. 2010) (quotation marks omitted)). See also Gil v. Reed, 381 F.3d 649, 663 (7th Cir.
2004) (summary judgment in favor of prison doctor overturned where prison doctor
refused to give inmate medication prescribed by outside specialist and only provided
inmate with Tylenol III, an ineffective substitute). “A prison physician cannot simply
continue with a course of treatment that he knows is ineffective in treating the inmate’s
condition.” Arnett, 658 F.3d at 754,
Here, the allegations contained in plaintiff’s complaint are that plaintiff, prior to
his incarceration, was being treated by a pain specialist who prescribed narcotic pain
medication. [61] at 5. Once at the DCC (at least from October 25, 2012 through
December 24, 2012), defendant Dominguez, aware of plaintiff’s medical issues, refused
to provide any effective course of treatment to address his serious back condition and
chronic pain. Id. at 6. Instead of allowing plaintiff to continue on the course of treatment
set up by the outside specialist, defendant Dominguez only allowed plaintiff Tylenol and
Ibuprofen. Id. Plaintiff complains due to defendant Dominguez’s refusal to prescribe an
effective course of treatment for his medical condition, he “experienced unnecessarily
intense and prolonged pain.” Id.
While discovery may uncover more information regarding whether defendant
Dominguez’s treatment in prescribing Tylenol and Ibuprofen for plaintiff’s chronic back
pain was reasonable and constitutionally adequate, these are questions of fact that survive
this stage of the litigation. Therefore, defendant Dominguez’s motion to dismiss Count II
of plaintiff’s complaint against her is denied.

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  Additionally, unlike Estate of Cole by Pardue, here, the court is presented with a motion to
dismiss, a markedly different posture than a motion for summary judgment.

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B. Statute of Limitations
Defendant Dominguez also brings an argument that plaintiff’s claims are timebarred by the applicable two-year statute of limitations because, despite the fact that this
cause was stayed pending the outcome of plaintiff’s case in the Illinois Court of Claims,
plaintiff’s action at the Court of Claims apparently did not include Dominguez as a
defendant. Defendant Dominguez argues the statute of limitations continued to run on
plaintiff’s claims against her while he was pursuing his claims against the State of
Illinois. Because of that, defendant Dominguez argues, plaintiff’s claims against her
have expired.
The period of limitations is an affirmative defense. FED. R. CIV. P. 8(c)(1). The
Seventh Circuit has “held many times that, because complaints need not anticipate
defenses, Rule 12(b)(6) is not designed for motions under Rule 8(c)(1). See e.g., United
States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003); United States v.
Northern Trust Co., 372 F.3d 886 (7th Cir. 2004); Xechem, Inc. v. Bristol-Myers Squibb
Co., 372 F.3d 899 (7th Cir. 2004).” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.
2012). Further, the court agrees with plaintiff that at this stage of the litigation,
plaintiff’s complaint would have to reveal an “airtight” defense of statute of limitations
(which it does not) in order for dismissal to be appropriate. Hayes v. Hile, 527 Fed.Appx.
565, 566 (7th Cir. 2013). When a plaintiff files his complaint he is “not required to
anticipate a limitations defense or establish through his complaint that his § 1983 claims
would be saved by tolling of the limitations period.” Id.
Because defendant Dominguez’s argument does not reveal an “airtight” defense
of statute of limitations based on plaintiff’s complaint, the court finds this affirmative
defense to be improperly brought at this stage of the litigation.
C. Request for “Strike”
Finally, defendant Dominguez’s request for an assessment of a “strike” pursuant
to 28 U.S.C. § 1915(g), is denied as moot.
For the foregoing reasons, defendant Dominguez’s motion to dismiss is denied.
Dated: 2/12/2018

ENTER:

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United States District Court Judge

Electronic Notices. (LC)

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