The opinion of the court was delivered by: Murphy, District Judge:
Plaintiff Sammy J. Moore filed a deliberate indifference claim under 42 U.S.C. § 1983 in the Circuit Court of Randolph County Illinois, which was removed to this Court on May 4, 2011 (Doc. 2). Before the Court are pending motions for summary judgment by Defendant Adrian Feinerman (Docs. 5, 15). The Court held two hearings to address the motions for summary judgment, and now GRANTS Defendant's motion for summary judgment for failure to exhaust administrative remedies (Doc. 15), MOOTING Defendant's motion for summary judgment on the statute of limitations (Doc. 5). Mr. Moore has a pending motion to appoint counsel that will also be denied as MOOT.
PLAINTIFF'S 42 U.S.C. § 1983 CLAIM
Mr. Moore is currently confined in Menard Correctional Center in the custody of the Illinois Department of Corrections, and his § 1983 claim arose from incidents that allegedly occurred while Mr. Moore was confined in Menard. According to the complaint, Mr. Moore visited Defendant Dr. Feinerman on May 8, 2008 and on July 30, 2008 to treat Mr. Moore's migraine headaches (Doc. 2-1). Dr. Feinerman refused to treat Mr. Moore's migraine pain. Dr. Feinerman did not complete an adequate diagnostic evaluation, instead ordering x-rays that he knew had already been completed and that he knew would not aid in diagnosing or treating Mr. Moore's migraine pain. Mr. Moore claims that Dr. Feinerman's refusal to treat his migraines constituted deliberate indifference to a serious medical need in violation of the Eighth Amendment.
MOTIONSFOR SUMMARY JUDGMENT AND PLAINTIFF'S RESPONSE
Defendant filed two motions for summary judgment, claiming that Mr. Moore failed to file within the statute of limitations (Doc. 5), and claiming that Plaintiff failed to exhaust his administrative remedies (Doc. 15). The alternate bases for summary judgment are difficult to consider separately, but the primary issue for both is when and if Plaintiff filed certain grievances.
Mr. Moore filed his complaint on October 28, 2010, and Defendant argues that this filing was beyond the statute of limitations. Here, the Court borrows Illinois's statute of limitations, which both parties agree is two years. See Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011) ("In Illinois, the statute of limitations period for § 1983 claims is two years."). Neither are the dates of injury in disputeSMay 8, 2008 and July 30, 2008 are the dates when Defendant allegedly refused to treat Mr. Moore. Mr. Moore's complaint was over two years from those dates, however, Mr. Moore quite correctly points out in his response that "when a federal court borrows a state's limitations period, it also borrows the state's tolling rules--including any equitable tolling doctrines." Smith v. City of Chicago Heights, 951 F.2d 834, 840 (7th Cir. 1992), citing Johnson v. Railway Express Agency, 421 U.S. 454, 463-64 (1975). Because 42 U.S.C. § 1997(e) bars prisoners from filing suit until they have exhausted their administrative remedies, "a federal court relying on the Illinois statute of limitations in a § 1983 case must toll the limitations period while a prisoner completes the administrative grievance process." Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). This is where the statute of limitations issue becomes bound up with the exhaustion issue: when (if at all) did Mr. Moore complete the grievance processSfor two years from that date is when the statute of limitations ran. Mr. Moore claims that he last sent an inquiry into the status of his previously filed grievances to the Illinois Department of Corrections' Administrative Review Board ("ARB") on October 21, 2008. Mr. Moore argues that, pursuant to 20 Ill.Adm.Code 504.850, the ARB had six month from that date--so until April 21, 2009--to render a decision, and the statute of limitations would therefore be tolled until April 21, 2011.
Mr. Moore's exhibits, by his own admission at the Pavey hearing, were not all directly related to his claim against Dr. Feinerman. Mr. Moore presented the Court with: (1) a copy of a May 6, 2008 letter to Plaintiff from another health services official referring Plaintiff to a follow-up doctor appointment; (2) a copy of an emergency grievance, dated July 16, 2008, returned to Plaintiff from the Chief Administrative Officer ("CAO") with a note denying the emergent nature of the grievance and directing Plaintiff to file a grievance in the normal manner; and (3) an ARB return-of-grievance form directed to Plaintiff regarding an August 3, 2006 grievance, informing Plaintiff that the grievance was not properly filed, and instructing Plaintiff to provide a copy of his grievance officer's response. None of these exhibits bolstered Mr. Moore's narrative timeline of exhaustion. According to Mr. Moore, he proceeded as follows (as actually relates to his claim against Dr. Feinerman): (1) on May 8, 2008, he sent an emergency grievance to the CAO regarding Defendant's refusal to treat him on that date. He received no response from the CAO; (2) on June 10, 2008, he sent the May 8 emergency grievance to his grievance officer, and again received no response; (3) on August 14, 2008, he sent a grievance to his grievance officer regarding Defendant's July 30 refusal to treat his migraines; (4) on September 10, 2008, he sent the May 8 grievance to the ARB; and (5) on October 21, 2008, he sent his August 14 grievance to the ARB. In his motion for summary judgment regarding administrative exhaustion, Defendant filed the affidavit of Gina Allen, Chairperson of the ARB, in which Ms. Allen avers that Mr. Moore had not filed any grievances or correspondence with the ARB regarding Dr. Feinerman or migraine treatment from at least January 1, 2008 to September 30, 2008.
The Court held a hearing on December 5, 2011 at which Mr. Moore appeared via telephone. At that hearing, Defendant presented not only the affidavit of Ms. Allen, but also Plaintiff's own deposition testimony related to a different lawsuit. That deposition was taken on June 16, 2008, and in it Mr. Moore testified that he had yet to file a grievance. Though Defendant admitted that Mr. Moore was referencing a medical issue other than his migraine headaches in the testimony, the overall impression left by the deposition testimony was that Mr. Moore had not filed any medical-related grievance at Menard before June 16, 2008. This conflicts with Mr. Moore's contention that he filed an emergency grievance on May 8, a grievance he claimed to have re-submitted to his grievance counselor six days before the deposition. Mr. Moore protested that his deposition testimony related solely to issues unrelated to Dr. Feinerman. Regarding the dearth of any relative grievance exhibits, Mr. Moore told the Court that the law library refused to make copies of grievances and that he could not submit as evidence grievances he never received back.
The Court held a follow-up hearing on February 13, 2012 so that Mr. Moore could attend in person. Mr. Moore described the accepted grievance 'mail' procedure wherein he posted the grievances in his cell bars for pick-up. In response to a question, Mr. Moore said he could not remember who his cell-mate was during the time he submitted the alleged Dr. Feinerman grievances.
When asked why he waited until he waited nearly two full years--even by his own estimation of the tolling period--to file a suit against Dr. Feinerman, Mr. Moore simply told the Court that he waited because he knew he had two years to file. Mr. Moore testified that he had included ARB responses not related to his claim against Dr. Feinerman in his exhibits to show the Court that the ARB was typically delinquent in their response to grievances.
The Prison Litigation Reform Act ...