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Lucio v. Frierson

United States District Court, Seventh Circuit

August 9, 2013

ABEL LUCIO, Plaintiff,


STEPHEN C. WILLIAMS, Magistrate Judge.

This § 1983 case, in which pro se Plaintiff Abel Lucio alleged deliberate indifference toward his medical needs, is before the Court on Defendant Dr. Santos' Motion for Summary Judgment (Doc. 60) for failure to exhaust administrative remedies. 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) for a Report and Recommendation on whether Plaintiff exhausted his administrative remedies before filing suit. For the following reasons, the undersigned RECOMMENDS that the Court DENY the Motion.


On November 2, 2011, Abel Lucio, then an inmate at Pontiac Correctional Center in Illinois, brought the instant suit pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff alleges that he was sexually assaulted by other inmates on or around July 1, 2010 at Centralia Correctional Center. (Doc. 1). Plaintiff sought medical attention for his injuries there on July 2, 2010. (Doc. 1). However, when Santos attempted to examine Plaintiff's anus, Plaintiff objected. (Doc. 1). Plaintiff alleges that Santos then forced the examination on him, which Plaintiff contends was just as humiliating and painful as the initial assault. (Doc. 1). Plaintiff then alleges that someone in the examination room broadcast his assault to other prisoners. (Doc. 1). Plaintiff also claims that Santos began withholding his previously prescribed pain medication after this incident. (Doc. 1).

Plaintiff, apparently erroneously believing that he had an affirmative obligation to prove that he exhausted his administrative remedies, preemptively filed a Response to Exhaustion of Remedies on February 21, 2013. (Doc. 54). Santos filed the present Motion on March 21, 2013. (Doc. 60). Plaintiff filed a Response on March 29, 2013. (Doc. 67). He filed an additional Response on April 24, 2013. (Doc. 74). The Court held hearing on the matter on August 7, 2013. A translator was present to assist Plaintiff. Both parties attached multiple copies of Plaintiff's grievances to their various pleadings. However, Santos' Motion referred to some grievances that were not previously in the record. The undersigned filed those grievances as an exhibit. (Doc. 93).


Plaintiff submitted an emergency grievance on July 22, 2010 based on his medical treatment and the denial of pain medication. (Doc. 93, pp. 1-2). He filed another grievance dated July 28, 2010, in which he complains of not receiving pain medication for his shoulder. (Doc. 54-1, p. 4) (Doc. 67, p. 17). In another grievance also dated July 28, 2010, Plaintiff again complains of several issues, including shoulder pain. (Doc. 54-1, p. 6) (Doc. 74-2, p. 9). Plaintiff submitted this grievance as an emergency, but it contains a response from the CAO indicating that the grievance was not substantiated as an emergency. (Doc. 54-1, p. 6) (Doc. 74-2, p. 9). Plaintiff submitted another relevant grievance on August 3, 2010, also seeking pain medication for his shoulder. (Doc. 54-1, p. 10) (Doc. 74-2, p. 12). No response is included with this grievance. (Doc. 54-1, p. 10) (Doc. 74-2, p. 12). Plaintiff filed a grievance on August 10, 2010, again complaining about his lack of pain medication and asking to speak to Assistant Warden Flagg. (Doc. 63, p. 3). Plaintiff filed a grievance written entirely in Spanish on August 13, 2010 regarding the events around his July 1, 2010 and a disciplinary ticket he subsequently received. (Doc. 54-1, pp. 14-16). The undersigned requested the translator translate this document on the record at the hearing and determined that it was not relevant to Plaintiff's claims here. Plaintiff filed an emergency grievance on a blank piece of paper on August 20, 2010 based on deliberate indifference and seeking medical treatment. (Doc. 54-1, p. 17) (Doc. 74-2, p. 21). No response from this grievance is on file. Plaintiff filed a grievance dated August 23, 2010 with his counselor to check on the status of his other grievances. (Doc. 67, p. 14) (Doc. 74-2, p. 23). He received a response the next day stating that grievance review takes time. (Doc. 67, p. 14) (Doc. 74-2, p. 23). Plaintiff submitted a copy of his cumulative counseling summary, which shows that he received responses from prison counselors, Jason Fallert and Gina Feazel in July and August. (Doc. 74-4, p. 15). Neither testified at the August 7, 2013 hearing. The summary does not reflect that Plaintiff received responses from the grievance officer. (Doc. 74-4, p. 15).

IDOC transferred Plaintiff from Centralia to Pontiac Correctional Center on August 25, 2010. On September 2, 2010, Plaintiff again filed a grievance related to the events at issue here. (Doc. 67, p. 8). In lieu of filing it directly to the ARB, Plaintiff filed this September 2, 2010 grievance with his counselor. Plaintiff wrote a letter to Ms. Kelly of Pontiac Correctional Center asking for the status of all the grievances he filed at Centralia on October 25, 2010. (Doc. 54-1, p. 24). The letter is written on an affidavit form, sworn, signed, and notarized. (Doc. 54-1, p. 24). On November 30, 2010, Plaintiff gathered up copies of many of his grievances, including those discussed above, and sent them to the ARB because he had never received any responses. He included an affidavit testifying to the lack of response for more than sixty (60) days. (Doc 74-4, pp. 12-13). It appears that he continued to swear out affidavits and attempt to follow up about his grievances with various people into 2011. (Doc. 74-4, pp. 9-11).


1. Summary Judgment Standard

Summary judgment - which is governed by FEDERAL RULE OF PROCEDURE 56 - is proper only if the admissible evidence considered as a whole shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Dynegy Mktg. & Trade v. Multiut Corp. , 648 F.3d 506, 517 (7th Cir. 2011) (citing FED. R. CIV. P. 56(a)).[1] The party seeking summary judgment bears the initial burden of demonstrating - based on the pleadings, affidavits and/or information obtained via discovery - the lack of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).

After a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 250 (1986). See also Serednyj v. Beverly Healthcare, LLC , 656 F.3d 540, 547 (7th Cir. 2011) ("When a summary judgment motion is submitted and supported by evidence... the nonmoving party may not rest on mere allegations or denials in its pleadings."). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson , 477 U.S. at 248. A mere scintilla of evidence supporting the non-movant's position is insufficient; a party will successfully oppose summary judgment only when it presents definite, competent evidence to rebut the motion. Albiero v. City of Kankakee , 246 F.3d 927, 931-32 (7th Cir. 2001). See also Steen v. Myers , 486 F.3d 1017, 1022 (7th Cir. 2007) ("[S]ummary judgment is... the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.") (internal quotation marks omitted). In other words, there is "no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Van Antwerp v. City of Peoria , 627 F.3d 295, 297 (7th Cir. 2010). Accord Anderson , 477 U.S. at 248 (finding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party).

2. PLRA's Exhaustion Requirement

Lawsuits filed by prisoners are governed by 42 U.S.C. § 1997e, the Prison Litigation Reform Act ("PLRA"). The PLRA states, in pertinent part, that "no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.[2] 42 U.S.C. § 1997e(a). Failure to ...

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