REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS, Magistrate Judge.
This case is before the Court on Defendants Magid Fahim's and Wexford Health Sources, Inc.'s Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Docs. 51 & 52). The matter has been referred to United States Magistrate Judge Stephen C. Williams by United States District Judge Michael J. Reagan pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and DENY Defendants' motion for summary judgment (Doc. 51 & 52).
II. Findings of Fact
A. Procedural Background
On May 6, 2011, Plaintiff filed a Complaint against various Defendants for claims of deliberate indifference (Doc. 1). Pursuant to 28 U.S.C. §1915A, District Judge Michael J. Reagan conducted a preliminary review of Plaintiff's Complaint on August 9, 2012 (Doc. 14). At that time, the Court dismissed some of the claims, leaving only the deliberate indifference claims against Defendant Fahim and Defendant Wexford.
As to Plaintiff's deliberate indifference claims against Fahim and Wexford, Plaintiff alleges that on July 25, 2009, Plaintiff slipped and fell down a flight of stairs while housed at Menard Correctional Center (Doc. 14). Plaintiff sustained injuries to his neck and spine in the fall, and was transported to Chester Memorial Hospital and then subsequently airlifted to St. Louis University Hospital for treatment ( Id. ). He remained at St. Louis University Hospital until July 30, 2009 ( Id. ). Plaintiff was, at that time, released back to Menard Correctional Center.
Upon his return to Menard, Plaintiff was treated by Defendant Fahim, who Plaintiff alleges continually refused to allow Plaintiff to see an outside specialist or have an MRI in order to reduce health care costs at the prison ( Id. ). Plaintiff alleges Defendant Fahim's treatment of Plaintiff was a direct result of Defendant Wexford's written policy to save money ( Id. ). Defendant Fahim allegedly denied Plaintiff certain treatments because Defendant Wexford provides Fahim with monetary incentive for saving health care costs at the prison. Plaintiff alleges that Defendants' deliberate indifference has caused him severe and worsening pain in his lower spine ( Id. ).
Now before the Court for a Report and Recommendation is a motion for summary judgment filed by Defendants (Doc. 51 & 52). The Defendants' motion alleges Plaintiff failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act pursuant to 42 U.S.C. §1997e(a). Specifically, Defendants argue that Plaintiff did not follow the proper steps to exhaust his administrative remedies regarding his back injury and treatment by Defendant Fahim because he did not receive a counselor or grievance officer response before submitting the grievance to the ARB. Plaintiff, however, has filed a Response (Doc. 75) arguing that he did all that he could to exhaust his administrative remedies and that he sent an emergency grievance to the warden which was never returned to him.
B. Pavey Hearing
In accordance with Pavey v. Conley, the Court conducted an evidentiary hearing on April 29, 2013. Pavey v. Conley 544 F.3d 739 (7th Cir. 2008). The crux of the issue before the Court was whether Plaintiff received his emergency grievance back from the warden or whether he was thwarted in his attempts to exhaust his administrative remedies regarding his treatment for his back.
Plaintiff testified that although he submitted his emergency grievance regarding his medical treatment to the warden on August 4, 2009, he never received a response back from the warden. He indicated that was the reason he was not able to submit a copy of the August 4, 2009 grievance to the Court because he never received it back. He eventually wrote a letter to the grievance office asking about the status of the grievance, and he received a letter from Jeannette Cowan, Grievance Office Supervisor, on October 13, 2009, informing him that the grievance was returned to him on August 14, 2009 (Doc. 75 Ex. B-3). Defendants were not able to produce the grievance and the grievance office has no record of it ever being filed with them. He then appealed that decision to the ARB, which was returned to him with directions to first submit his grievance to the grievance officer and warden before proceeding with an appeal to the ARB (Doc. 75 Ex. B-6). Plaintiff also indicated that he submitted another grievance regarding his medical treatment on February 28, 2010 (Doc. 75 Ex. D-1). He did receive a response from the counselor as to that grievance on March 1, 2010 (Doc. 75 Ex. D-1; D-3). Plaintiff also testified that he tried to submit that grievance to the grievance officer but it was never returned. In light of the grievance never being returned, Plaintiff tried to appeal the grievance to the ARB and the ARB received said grievance on April 20, 2010 (Doc. 75 Ex. D-4). The ARB ultimately denied the grievance because Plaintiff did not follow the proper procedures of first submitting his grievance to the grievance office. Plaintiff testified that he did all he could to exhaust his administrative remedies because the grievance office continually failed to return his grievances.
Defendants presented evidence that Dr. Fahim was not director at Menard at the time that Plaintiff filed his first grievance. Dr. Fahim did not ...