United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS, Magistrate Judge.
This case is before the Court on a Motion for Summary Judgment filed by Alfonso David (Docs. 42 & 43) and a Motion for Summary Judgment filed by David Folsom (Docs. 44 & 45). 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 Defendant David's motion for summary judgment (Docs. 42 & 43) and GRANT IN PART AND DENY IN PART Defendant's Folsom's motion for summary judgment (Docs. 44 & 45).
II. Findings of Fact
A. Procedural Background
On March 6, 2013, Plaintiff filed his Complaint against Defendants David A. Folsom and Alfonso David, alleging retaliation and deliberate indifference to his medical needs (Doc. 1). Specifically, Plaintiff alleged that prior to being transferred to Shawnee Correctional Center he was diagnosed with spine inflammation and arthritis (Doc. 9). On arriving at Shawnee on November 30, 2011, Plaintiff sought diagnosis and treatment for his conditions but he was never examined ( Id. at p. 2). Specifically, Plaintiff alleges that Defendant David never examined his spine for inflammation or arthritis, ordered testing, or referred Plaintiff to a specialist ( Id. ). Defendant David also did not provide Plaintiff with a low bunk permit. Plaintiff also alleges that on January 15, 2012, he was beaten by a cellmate, causing him rib pain, blurry vision, migraines, and memory loss, but Defendant David would not order any tests ( Id. ).
Plaintiff also alleges that his health further deteriorated in March 2012 when he was placed in segregation and Defendant Folsom forced him to sleep on the cell floor ( Id. ). As a result, Plaintiff was bitten by a spider on his forearm and leg, causing his leg to become swollen and to later develop a staph infection ( Id. at pp. 2-3). Plaintiff alleges that Defendant David and Folsom were deliberately indifferent to this injury.
Plaintiff also alleges that Defendant Folsom retaliated against him for using the grievance system to complain about his medical issues ( Id. at p. 3). Because Plaintiff wrote grievances, Plaintiff alleges that Defendant Folsom wrote two disciplinary tickets against Plaintiff, forced him to sleep on the floor and then on the top bunk, threatened Plaintiff with the loss of his personal property, and intercepted his mail ( Id. ). Plaintiff's Complaint alleges a claim of deliberate indifference against both Defendants David and Folsom, as well as a claim of retaliation against Defendant Folsom.
In response to Plaintiff's Complaint, both Defendants Folsom and David filed motions for summary judgment, arguing that Plaintiff had failed to exhaust his administrative remedies. Both Defendants' summary judgment motions allege that Plaintiff failed to exhaust his administrative remedies because he failed to appeal his grievances to the ARB.
Defendant David's motion for summary judgment noted that three grievances were received by the ARB on February 29, 2012 (Doc. 43). Two of those grievances were dated January 16, 2012 and dealt with medical treatment. The January grievances state that he was treated by an unnamed nurse or paramedic for a January 15, 2012 altercation with his cellmate but do not name Defendant David or indicate that he was seen by a doctor (Doc. 43-1 at pp. 32-45). Plaintiff only indicates in those grievances that he was having a difficult time seeing a doctor.
Plaintiff also filed a grievance on March 18, 2012, which he notes in his response (Doc. 58 at p. 9; Doc. 1-4 at pp. 88-92). Plaintiff's grievance alleges that he was diagnosed with lower back arthritis and that Shawnee Correctional Center has inadequate medical care for his back as Defendant David is not a chiropractor (Doc. 1-4 at pp. 88-92). Plaintiff's grievance was reviewed by the counselor on April 6, 2012 and in that response Defendant David indicated, in a memorandum dated April 3, 2012, that he had not seen Plaintiff for low back pain but would request his medical records and evaluate him ( Id. at pp. 88, 92). Plaintiff maintains that he sent that grievance to the grievance officer by placing the grievance in his segregation cell door but never received a response (Doc. 58 at p. 10). Plaintiff's April 18, 2012 grievance also related to medical care by Defendant David. This grievance was reviewed by his counselor on April 17, 2012 and subsequently by the grievance officer on June 18, 2012 (Doc. 43-3 at p. 25). The chief administrative officer concurred with the denial of his grievance on June 18, 2012 ( Id. ). Plaintiff's response indicates that he submitted the grievance to the ARB by placing the grievance in his segregation cell door but he never received a response (Doc. 58 at p. 12).
The last grievance Plaintiff alleges that he filed in regards to Defendant David was a grievance submitted on June 1, 2012 (Doc. 1-5). This grievance dealt with a spider bite he received while being required to sleep on the floor of his segregation cell ( Id. ). Plaintiff's grievance was received on June 12, 2012 and denied by the counselor on July 5, 2012 ( Id. ). The counselor noted that the injury was treated and he recovered. Plaintiff then appealed the grievance to the grievance officer and Plaintiff indicates that he received a memorandum from grievance officer Seip on July 5, 2012 with no other markings ( Id. at p. 5). Plaintiff conceded in his response that he did not send the grievance to the ARB because they would not accept the grievance without a form response from the grievance officer (Doc. 58 at p. 13).
Defendant Folsom's motion for summary judgment focuses on two grievances filed by Plaintiff, one on March 30, 2012 and one dated April 8, 2012 (Docs. 44 & 45). The March 30, 2012 grievance was not received, according to Defendant's motion, until June 15, 2012 and thus was returned as untimely (Doc. 1-6 at pp. 29-32). The April 8, 2012 grievance was returned by Plaintiff's counselor as being a duplicate of the March 30, 2012 grievance ( Id. at p. 48). Plaintiff's response indicates that the counselor responded to his March 30, 2012 grievance on April 11, 2012 and that he forwarded the grievance to the grievance officer within the required timeframe and that the decision that it was untimely was incorrect (Doc. 60 at p. 8). As to the April 8, 2012 grievance, Plaintiff's response indicated that he forwarded the grievance to the grievance officer after receiving a response from the counselor that it was a duplicate of the March 30, 2012 grievance, but never got a response to the grievance ( Id. at p. 9). Plaintiff's response also indicated that he filed another grievance on March 30, 2012, which he labeled an "appeal" (Doc. 60 at p. 7). In this grievance, Plaintiff indicated that Defendant Folsom wrote him two disciplinary tickets for sleeping on the cell floor and forced him to sleep in the top bunk even though he had a low bunk permit. Plaintiff indicates that he submitted this grievance to counselor Lynn but never received a response ( Id. at p. 8).
B. Pavey Hearing
Because the undersigned found that there were issues of fact as to whether Plaintiff exhausted his administrative remedies, the Court conducted a hearing on December 17, 2013 in accordance with Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
1. Defendant David
As to the claims against Defendant David, the undersigned limited the testimony and evidence to the March 18, 2012 and April 18, 2012 grievance. It was clear to the undersigned that the January 16, 2012 grievances did not mention Defendant David or any other doctor. Further, a February 8, 2012 grievance mentioned in Plaintiff's response was not related to Plaintiff's claims against Defendant David as it grieved shift officers' practice of failing to provide Plaintiff with grievance forms in English (Doc. 1-4 at pp. 86-87). Thus, the undersigned found that Plaintiff only submitted two grievances regarding Defendant David's deliberate indifference. The first grievance was submitted on March 18, 2012. Plaintiff received a response to the grievance from his counselor. Plaintiff argued that he pursued the grievance with the grievance officer but never received a response, while Defendant David argued that Plaintiff never submitted his grievance to the grievance officer and thus failed ...