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Gevas v. Shearing

United States District Court, S.D. Illinois

November 7, 2014

DAVID C. GEVAS, Plaintiff,
v.
R. SHEARING, WEXFORD HEALTH SOURCES, INC., NURSE BUTLER, RONALD SKIDMORE, MS. MALLEY, ASSISTANT WARDEN BUTLER, and WARDEN HARRINGTON, 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 Nancy J. Rosenstengel 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 question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997e(a). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment on the Issue of Exhaustion filed on August 22, 2014 (Doc. 50) be DENIED, and that the Court adopt the following findings of fact and conclusions of law.

BACKGROUND

Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 on February 6, 2014 alleging claims related to a two-week stay at the Menard Correctional Center ("Menard") from August 21, 2013 to September 4, 2013. Plaintiff alleges that he was denied certain medication and medical treatment by Nurse Jeremy Butler, Dr. Robert Shearing, and Nurse Ronald Skidmore during his two week stay. He further alleges that it is the policy of Wexford Health Sources, Inc. ("Wexford") to discriminate against and deny medication to inmates temporarily confined at an institution on a writ to appear in Court in order to save money. Plaintiff's claims against Wexford also include one for retaliation (Plaintiff filed a previous suit against it). And, Plaintiff has alleged a deliberate indifference to his medical needs claim against Defendants Malley, the Health Care Unit Administrator, Assistant Warden Butler and Warden Harrington. Plaintiff is proceeding on 5 Counts (deliberate indifference, equal protection, policy and practice claim, retaliation, and a state law negligence claim) (Doc. 5).

Defendants Nurse Butler, Dr. Shearing, and Wexford have moved to summary judgment on the issue of exhaustion (Doc. 50). Plaintiff filed a response (Doc. 57), to which Defendants replied (Doc. 59), to which Plaintiff filed a sur-reply (Doc. 61) and an exhibit (Doc. 74).[1] On October 31, 2014, a hearing was held on the Motion pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) in which Defendants (Nurse Butler, Shearing, and Wexford) appeared by Counsel and Plaintiff appeared by video-conference.

FINDINGS OF FACT

The undisputed evidence reveals that Plaintiff submitted two grievances, on October 10, 2013 and October 23, 2013, regarding the issues contained in this lawsuit to the Administrative Review Board ("ARB") (Doc. 51-1, pp. 2-5). The October 10th grievance, which was filed when Plaintiff returned to Stateville Correctional Center ("Stateville"), is a detailed statement of the medications that Plaintiff takes, the conditions for which they are prescribed, that he was denied medication while at Menard, and a complaint that Wexford has in place a policy to discontinue medications prescribed at another facility in order to save money ( Id. 4-5). The grievance also indicates that he complained repeatedly to prison officials to no avail. The October 23, 2013 grievance is a brief account of inadequate pain medication, substituted medications, medications not supplied, and complaints of the medical co-pay he was required to pay ( Id. 2-3).

The ARB first responded to the grievances on June 13, 2014 ( Id. 1). The ARB recommended to the Director of the IDOC (S. A. Godinez) that information, regarding Plaintiff's particular treatment regimen and policies and procedures regarding inmate medication procedures upon temporary transfers pursuant to Court writs, should be acquired from Dr. Shicker, the Agency Medical Director, and Warden Williams, of Stateville ( Id. ). The Director concurred ( Id. ). In a subsequent and final response, dated September 18, 2014, the ARB recommended that the grievance be denied based on information provided by Dr. Shicker and Warden Williams (Doc. 74, p. 2). However, the ARB also recommended that "Warden Butler and Warden Williams are to ensure appropriate staff are adhering to A.D. 04.03.100 with regard to information and medication provided to an offender for and during a writ" ( Id. ). The Director similarly concurred ( Id. ).

As indicated above, Plaintiff filed his Complaint on February 6, 2014, four months after filing a grievance with the ARB and before he received either response from the ARB.

Plaintiff testified that while he was housed at Menard, he submitted three emergency grievances, on August 23, 2013, August 25, 2013, and August 29, 2013, regarding his medications. He claims that he did not receive a response to these emergency grievances. He has not provided a copy of the grievances. However, Plaintiff has provided a Cumulative Counseling Summary which indicates that on August 27, 2013, an emergency grievance (dated August 23, 2013), regarding medication, was returned to Plaintiff and deemed not an emergency (Doc. 57, p. 5). A notation regarding this grievance also is included in an Emergency Grievance Log for August 2013 ( Id. 6). In the two October, 2013 grievances mentioned above, Plaintiff also states that he submitted three emergency grievances, which were ignored, in August 2013.

At the hearing, Plaintiff indicated that the grievances sent to the ARB contained the complaints that were included in the three emergency grievances. The first emergency grievance concerned his arrival and Nurse Butler. The second emergency grievance concerned Defendant Skidmore. And, the third emergency grievance concerned the lack of response to his previous grievances. The Court finds that Plaintiff did submit three emergency grievances while housed at Menard regarding his medications. This Court also finds that Plaintiff did not receive responses to these emergency grievances.

CONCLUSIONS OF LAW

Summary judgment is proper only if the moving party can demonstrate Athat 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 Information 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 County, 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 Athe ...


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