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Michael Thomas, Inmate #B-71744 v. Dr. Fuentes

February 22, 2012

MICHAEL THOMAS, INMATE #B-71744, PLAINTIFF,
v.
DR. FUENTES, DR. FEINERMAN, STEPHEN PLATT, MARY ANN KOHRING, DEANA MEDFORD, CHAD TODARO, AND DEREK FLATT, DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

1. Introduction

Plaintiff Michael Thomas, an inmate in the custody of the Illinois Department of Corrections, filed his Complaint (Doc. 1) on November 10, 2010, pursuant to 42 U.S.C. § 1983, alleging that the Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. More specifically, Thomas alleges that on February 10, 2009, while he was housed at Menard Correctional Center, he fell while playing basketball and injured his left ankle and Defendants, Dr. Fuentes, Dr. Feinerman, Dr. Stephen Platt, Deana Medford, Chard Todaro, and Derek Flatt, failed to properly diagnose and treat his injury, and refused to move him to a lower gallery, despite Plaintiff's obvious difficulties walking. According to Plaintiff Thomas, it was not until early 2010, after he was transferred to Hill Correctional Center, that he was diagnosed with a broken ankle and joint damage.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Report and Recommendation of United States Magistrate Judge Stephen C. Williams regarding Defendants Feinerman, Fuentes, Kohring and Medford's Motion to Dismiss (Doc. 45) and Motion for Summary Judgment (Doc. 66), and Defendants Flatt and Todaro's Motion for Summary Judgment (Doc. 64) is before the Court (Doc. 99). Also before the Court is Plaintiff Thomas's Objections to the Report and Recommendation (Doc. 101), as well as Defendants Flatt and Todaro's Response (Doc. 102).

Magistrate Judge Williams recommends that that Defendants' motions be granted and all claims against them be dismissed without prejudice, due to Plaintiff's failure to exhaust administrative remedies before filing suit, as required by 42 U.S.C. § 1997e(a). Plaintiff Thomas objects that Judge Williams's conclusions are clearly erroneous and contrary to law. Plaintiff presents two principal arguments. First, Thomas argues that it was error for Judge Williams to conclude that Plaintiff's March 25 and October 18, 2009, grievances were never filed. Second, that it was error for Judge Williams to require Plaintiff's grievances to specifically identify the Defendants in his grievance(s).

2. Applicable Legal Standards

Plaintiff Thomas has objected to the Report and Recommendation; accordingly, the Court will undertake de novo review of the portions of the Report to which specific objection was made. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject or modify the recommended decision, or recommit the matter to the Magistrate Judge with instructions. Fed.R.Civ.P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999).

Defendants have moved for dismissal and for summary judgment, asserting that Plaintiff Thomas failed to exhaust administrative remedies before filing suit, as required by 42 U.S.C. § 1997e(a). See Docs. 45, 46, 64, 65, 66, 67. As a procedural matter, Defendants cite Federal Rules of Civil Procedure 12(b)(6) and 56. However, analysis of the exhaustion requirement is governed by unique procedures.

The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners to exhaust administrative remedies before filing suit in federal court. That requirement applies to all suits challenging prison conditions under 42 U.S.C. § 1983, as well as actions under "any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility." 42 U.S.C. § 1997e(a).Exhaustion of administrative remedies under the PLRA is a condition precedent to suit in federal court. Dixon v. Page, 291 F.3d 485, 490 (7th Cir. 2002). The law of this Circuit establishes that the inmate must comply with the rules and procedures governing grievances in the particular institution of incarceration, including any time limitations and all steps in a multi-step grievance process.

To properly exhaust remedies within the meaning of the PLRA, the inmate "must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). See also Burrell v. Powers, 431 F.3d 282, 284 (7th Cir. 2005). If administrative remedies are not properly exhausted prior to commencement of the federal lawsuit, the district court must dismiss the suit (or any claims not fully exhausted). Burrell, 431 F.3d at 285; Jones v. Bock, 549 U.S. 199, 201 (2007).*fn1 The IDOC's three-stage administrative process for resolving inmate grievances is delineated in 20 Ill. Admin. Code Section 504.810. The inmate is required to follow the sequential process, concluding with an appeal in writing to the Director of the IDOC, by way of the Administrative Review Board (ARB). See 20 Ill. Admin. Code §§ 504.810, 504.830, 504.850.

Failure to exhaust administrative remedies is an affirmative defense; the defendant correctional officials have the burden of proving that the inmate had available remedies that he did not utilize. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004).A remedy is "available" if the administrative procedure can lead to some relief, even if it is not the precise relief the inmate wants. See Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001); Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir. 2001). "Prison officials may not take unfair advantage of the exhaustion requirement . . . and a remedy becomes 'unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (emphasis added) (citing Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); and Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).

In Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Seventh Circuit delineated a three-step process for cases in which exhaustion is contested.

(1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, the judge will then determine whether (a) the plaintiff has failed to exhaust his administrative remedies, and so he must go back and exhaust;

(b) or, although he has no unexhausted administrative remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), and so he must be given another chance to exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's not just being given a runaround); or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of ...


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