United States District Court, S.D. Illinois
JIMMIE L. FORD, Plaintiff,
WEXFORD HEALTH SOURCE, JANETTE KINCADE, L. OVERALL, S. HAGENE, Defendants.
REPORT AND RECOMMENDATION
DONALD G. WILKERSON, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for Summary Judgment (Doc. 40) filed by Defendants, Janette Kincade and Samantha Hagene, on August 16, 2013. A hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) was held before the undersigned on October 28, 2013. For the reasons set forth below, it is RECOMMENDED that the Motion be GRANTED IN PART AND DENIED IN PART, that this matter be DISMISSED as to Defendant Kincade, that the matter PROCEED as to Defendant Hagene, and that the Court adopt the following findings of fact and conclusions of law.
Plaintiff, Jimmie Ford, an inmate currently at Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff contends that Defendants were deliberately indifferent to his serious medical needs by denying him adequate medical treatment for his broken tooth. At issue is whether Plaintiff exhausted his administrative remedies and properly grieved the issue with respect to Defendants Janette Kincaid and Samantha Hagene prior to filing suit. Defendants Wexford Health Source and L. Overall have not filed motions for summary judgment on the issue of exhaustion.
FINDINGS OF FACT
Plaintiff submitted a grievance dated March 15, 2012. In that grievance, Plaintiff alleges that he had been requesting treatment for a broken tooth since June 14, 2011 as he was experiencing excruciating pain and was unable to chew food and drink very hot or cold beverages. On or around December 5, 2011, Plaintiff was called into the Dental Department at Menard to get his teeth cleaned by Defendant Hagene. Plaintiff informed the staff that he had a broken tooth that caused him pain. In response, Defendant Hagene reviewed his dental records and told Plaintiff that he was scheduled to get his tooth filled. Plaintiff declined to get his teeth cleaned because of the pain.
Nursing Supervisor, Defendant Janette Kincade, responded to Plaintiff's grievance on March 28, 2012. In her response, Kincade noted that Plaintiff refused to have his teeth cleaned, and that he was put on a list to be seen for his broken tooth. Defendant Kincade explained that the list was very long and Plaintiff would have to wait his turn. Defendant Kincade recommended that Plaintiff submit a sick call slip detailing the pain so he could be seen sooner.
Plaintiff submitted a second grievance dated April 2, 2012. In that grievance, Plaintiff seems to clarify the steps he took to submit his first grievance. Plaintiff states that on March, 15, 2012, the day he submitted his first grievance, Counselor Allsup was on "6 Gallery in the North One Housing Unit." Plaintiff informed her that he had a grievance for her and she accepted it. The remainder of Plaintiff's grievance is an exact recitation of his first grievance. Nursing Supervisor Angela Crain, who is not a party to this case, responded to Plaintiff's grievance on May 19, 2012. Crain noted that she viewed Plaintiff's medical records and found that he was seen on April 19, 2012 by the dental unit and was prescribed Tylenol and antibiotics for an infection. Crain also stated that Plaintiff was seen again by the dental unit on April 24, 2012.
Plaintiff filed his grievances with a grievance officer on April 27, 2012 after receiving a counselor's response on April 11, 2012. In a report dated May 3, 2012, a grievance officer recommended that Plaintiff's grievances be denied as Plaintiff was seen by a dentist on April 19, 2012 and prescribed medication for pain and an infection. Further, the grievance officer stated that the tooth was extracted on April 29, 2012, which resolved Plaintiff's issue. On May 9, 2012, the Chief Administrative Officer concurred in the grievance officer's report. Plaintiff appealed the decision to the ARB on June 1, 2012. The ARB returned the Plaintiff's grievances on January 28, 2013, more than six months later, as untimely because Plaintiff failed to submit them within 60 days of the incident at issue.
CONCLUSIONS OF LAW
Summary judgment is proper only if the moving party can demonstrate that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha Cnty., 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary 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. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
The PLRA provides:
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.
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-35 (7th Cir. 1999) (stating that §1997e(a) of the PLRA "makes exhaustion a precondition to bringing suit" under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the Supreme ...