The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 52) of Magistrate Judge Clifford J. Proud following a hearing on November 16, 2010, at which plaintiff Maurice Jackson testified. The Report recommends that the Court grant defendant Rashonda Pollion's motion for summary judgment for failure to exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a) (Doc. 36).Jackson has objected to the Report (Doc. 54), and Pollion has responded to that objection (Doc. 55).
I. Report and Recommendation Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made and may consider the record before the magistrate judge anew. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
II. The Report and Objections
Jackson was an inmate at Menard Correctional Center ("Menard") at all relevant times. He complains that Pollion, a nurse, and James Ryan, a correctional counselor, deprived him of his blood pressure medicine from February 15, 2009, to March 9, 2009. This, Jackson claims, amounts to deliberate indifference to a serious medical need in violation of the Eighth Amendment. Pollion argues in her motion for summary judgment that Jackson failed to exhaust the administrative remedies available to him for his claim against her as required by 42 U.S.C. § 1997e(a).
The Report carefully sorts through numerous grievances filed by Jackson around the relevant time period and identifies three alleged grievances that could potentially have raised Jackson's claim against Pollion:
* a February 23, 2009, grievance that Jackson alleges was destroyed by Ryan before a response such that Jackson was unable to pursue it to the final administrative review stage;
* a March 16, 2009, grievance that Jackson sent directly to IDOC Director Roger Walker Jr.; and
* a May 28, 2009, grievance that Jackson again sent directly to Walker.
The Report concludes that none of these three grievances sufficiently raised the issue of the denial of hypertension medication by Pollion. Implicit in this conclusion is that Jackson's testimony was incredible when he swore in an affidavit and testified at the hearing that his February 23 grievance complained specifically that Pollion had denied him blood pressure medicine. However, there is no rationale for this credibility determination. The Report ultimately recommends the Court grant Pollion's motion for summary judgment on the grounds that Jackson failed to exhaust his administrative remedies against her.
Jackson objects to the Report's findings that the March 16 grievance does not pertain to the denial of hypertension medication and that the March 16 and May 28 grievances do not request relief for the denial of hypertension medication. He also argues that his affidavit and hearing testimony regarding the content and disposition of the February 23 grievance creates a genuine issue of fact regarding whether Ryan prevented Jackson from pursuing a sufficient grievance by throwing it away.
The law is clear that a prisoner may not file a § 1983 suit "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 87-88 (2006). In order to satisfy the exhaustion requirement of 28 U.S.C. § 1997e(a), a prisoner's grievance and appeal must be filed "in the place, and at the time, the prison's administrative rules require . . . [and] . . . contain the sort of information that the administrative system requires." Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) (internal citation and quotations omitted); see Woodford, 548 U.S. at 90, 93 ...