JAMES C. HARRIS, Plaintiff,
JIMMY DEAN, Defendant.
REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS, Magistrate Judge.
This case is before the Court on Defendant Jimmy Dean's Motion for Summary Judgment for Failure to Exhaust (Doc. 23). 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 GRANT Motion for Summary Judgment for Failure to Exhaust (Doc. 23).
II. Findings of Fact
A. Procedural Background
Plaintiff filed his Complaint on September 13, 2013, alleging that Defendant Dean was deliberately indifferent to a serious medical need (Doc. 1). Specifically, Plaintiff alleges that while he was prescribed Naproxen for headaches, Plaintiff suffered from an ulcer and ruptured artery, which caused him to vomit blood (Doc. 10). On December 14, 2011 Plaintiff requested assistance because he was vomiting blood while in his cell (Doc. 1 at p. 6). Defendant Dean responded to his request, evaluated his condition, and took his name and prison identification number ( Id. ). However, Defendant Dean allegedly did not return for 1 hour and 45 minutes, at which time Plaintiff was removed to the Health Care Unit ( Id. ). During the time that Plaintiff waited for Defendant Dean to return, Plaintiff alleges that he continued to get weaker and nauseated, and in fact vomited more blood as he was being transferred to the health unit. He was rushed to Chester Memorial Hospital where he was diagnosed with an ulcer and ruptured artery, which had bled into his stomach ( Id. ). Plaintiff's Complaint alleges that Defendant Dean was deliberately indifferent to his medical needs by delaying his transfer to the health care unit.
In response to Plaintiff's Complaint, Defendant Dean filed a motion for summary judgment arguing that Plaintiff failed to exhaust his administrative remedies (Doc. 23). Specifically, Defendant argues that Plaintiff did not fully exhaust his grievances as he submitted grievances to the ARB without attaching the counselor's response, grievance officer's report, and the Chief Administrative Officer's response. Defendant acknowledged that the ARB received two grievances from Plaintiff dealing with Defendant's delay in treatment for Plaintiff (Doc. 23 Ex. A). One grievance was dated December 26, 2011 and received by the ARB January 26, 2012 ( Id. at pp. 4-6). That grievance was ultimately returned to Plaintiff because the grievance did not contain the counselor's response, the grievance officer's report, or the Chief Administrative Officer's response ( Id. ). The ARB returned the grievance with a letter informing him of his requirement to submit a grievance with the proper responses from the institutional level ( Id. at p. 4). The ARB then received another grievance from Plaintiff on March 16, 2012 ( Id. at pp. 7-11). This grievance was dated December 26, 2011/January 19, 2012, but also did not include the counselor's, grievance officer's, or Chief Administrative Officer's response and thus was returned to Plaintiff. The ARB also informed Plaintiff that his grievance was untimely ( Id. at p. 9). Defendant argues that since Plaintiff failed to comply with the department rules or ARB instructions and failed to submit the proper responses at the institutional level, Plaintiff has failed to exhaust his administrative remedies.
Plaintiff filed a Response (Doc. 27) in which he argued that he tried to pursue his grievance at the institutional level, but that neither his counselor, grievance officer, nor the Chief Administrative Officer ever responded. Plaintiff argues that he wrote a grievance on December 26, 2011 regarding his medical treatment, but that he never received a response from anyone at the institution. He claims that he wrote to the warden to ask about his grievance but never heard back from the warden. He also stated that he gave his counselor, M.L. Price, his grievance and that she told him she had 90 days to answer but he never received a response. He then sent the grievance to Gina Allen with the ARB, but she returned the grievance for not providing the proper responses. He alleged that he tried to return the grievance telling Ms. Allen that he could not get anyone at the institution to respond, but she returned it as untimely.
In support of his arguments, Plaintiff provides the Court with a grievance dated January 19, 2012, with the date December 26, 2011 written above it, but the grievance is not signed by the Plaintiff (Doc. 27 at pp. 7-8). The grievance indicates it was received by the ARB on March 16, 2012 ( Id. ). He also includes a February 8, 2012 letter to Warden Michael Atchison in which he informs the warden that he is trying to exhaust his remedies through the grievance process and asks the warden to see that his grievances get to the proper people ( Id. at p.9). He also attaches a grievance from May 3, 2012 in which he states that he gave his counselor a grievance regarding medical treatment on January 27, 2012 but that he never received it back ( Id. at p. 11). This grievance does not have any responses on it and Plaintiff has presumably written "No Respond from Warden Gave Him 30 Days" ( Id. ). He also has a February 8, 2012 letter to a B. Spiller indicating that he gave his counselor Ms. Price a grievance on January 27, 2012 which she never returned ( Id. at p. 15). There is also a March 13, 2012 letter from the John Howard Association to Warden Atchison which purports to enclose an emergency grievance from Plaintiff dated December 26, 2011, that he alleged to them was never responded to ( Id. at p. 17). The John Howard Association also wrote Plaintiff on May 29, 2012 regarding a grievance from December 20, 2011 ( Id. at p. 18). In that letter, the John Howard Association recommends that Plaintiff contact his counselor regarding the status of his grievance.
Defendant Dean filed a Reply (Doc. 31) in which he argued that Plaintiff's grievance (Doc. 27 at p. 7) lacked credibility because it was not signed by Plaintiff, had two separate dates on it (12/26/2011 and 1/19/2012) and was not received by the ARB until March 16, 2012, without any response from anyone at the institutional level. Defendant also argued that the grievance office at Menard had no record of Plaintiff filing a grievance against Dean regarding the December 14, 2011 incident. Plaintiff filed a sur-reply (Doc. 35) in which he sought to add additional exhibits including the same March 13, 2012 letter from the John Howard Association he previously provided, a letter to Plaintiff from Nursing Supervisor Angela Crain regarding his December 26, 2011 grievance, and a grievance sent on December 8, 2011. Defendant sought to strike the sur-reply under the Local Rules (Doc. 36). Plaintiff has filed a Response (Doc. 38) to that motion, simply asking to admit the exhibits attached to his sur-reply and to offer testimony regarding the exhaustion issue.
As the Court found that there were issues of fact as to whether Plaintiff tried to exhaust his administrative remedies but was thwarted when his counselor failed to respond, the Court set the matter for an evidentiary hearing pursuant to Pavey v. Conley , 544 F.3d 739 (7th Cir. 2008).
B. Pavey Hearing
The Court held an evidentiary hearing on the issue of whether Plaintiff exhausted his administrative remedies on August 5, 2013. The parties were informed that the issue was limited to determining what happened to Plaintiff's December 26, 2011 grievance after he submitted it to his counselor.
Defendant first called Lori Oakley to testify. Ms. Oakley is the current grievance officer at Menard Correctional Center, having served in the position since March 2012. Oakley testified that when the grievance office receives grievances they are sorted into two piles, one pile for grievances marked as an emergency and a regular grievance pile. The grievances are then date stamped and logged, with the emergency grievances logged in a separate log. Oakley testified that when a grievance deals with a medical issue, once the counselor receives the grievance it is given to the health care unit so that they may ...