United States District Court, S.D. Illinois
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 filed by Defendants Shearing and Moldenhauer (Doc. 34) be GRANTED, and that the Court adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff, a former inmate at Menard Correctional Center ("Menard"), filed this action alleging numerous claims against various defendants for violating his constitutional rights. After an initial screening by the Court pursuant to 28 U.S.C. § 1915A, Plaintiff was allowed to proceed on one count against Defendants Dr. Robert Shearing and Michael Moldenhauer for inadequate treatment of his thrush and genital warts (Doc. 7, p. 7-8).
On July 29, 2014, Defendants Moldenhauer and Shearing filed a Motion for Summary Judgment arguing that Plaintiff failed to exhaust his administrative remedies prior to filing suit (Doc. 34). Based on a review of Plaintiff's grievance records at Menard and the Administrative Review Board ("ARB"), Defendants assert that Plaintiff never filed a grievance alleging that Defendants, or any other medical provider, denied him care for thrush and/or genital warts at Menard. Defendants explain that attached to Plaintiff's Complaint is a copy of a letter he sent to Dr. Lewis Shicker, the Medical Director at Menard, describing dissatisfaction with the treatment Defendants Shearing and Moldenhauer were providing; however, Dr. Shicker responded to Plaintiff and informed him that if he was dissatisfied with his medical care he needed to go through the grievance process (Doc. 1, pp. 66-69). Defendants aver that this correspondence clearly does not satisfy Plaintiff's exhaustion requirements as he failed to utilize the grievance process established at Menard.
On September 4, 2014, Plaintiff filed his response to Defendants' Motion for Summary Judgment (Doc. 37). In his response, Plaintiff argued that he filed grievances regarding inadequate treatment by medical staff, but never received a response. In particular, Plaintiff mentioned that he filed a grievance October 13, 2013, at the direction of Dr. Shicker, but it also received no response. Plaintiff asserts that Menard's failure to respond to his grievances thwarted his attempts at exhausting his administrative remedies.
After a review of the grievances attached to Plaintiff's Complaint and submitted in support of Defendants' Motion for the Summary Judgment, the Court finds that there is no record of any grievances filed by Plaintiff concerning medical treatment provided by Defendants Shearing or Moldenhauer. The only grievances Plaintiff filed concerning his medical care at Menard were directed at Amy Lang and do not reference Plaintiff's thrush or genital warts ( See Doc. 1, pp. 33-34; Doc. 35-5, pp. 12-13; Doc. 35-2, pp. 4-6).
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court scheduled a hearing on the issue of exhaustion for October 22, 2014. This hearing was cancelled and reset for December 16, 2014 as Plaintiff had been paroled and was not able to make necessary arrangements for the October, 2014 hearing (Doc. 39). Prior to the December 16, 2014 hearing, Plaintiff informed the Court again that he would not be able to make the necessary arrangements to attend the hearing. Accordingly, the Court again reset the hearing for February 10, 2015 and advised Plaintiff that the hearing would not be rescheduled again, absent extraordinary circumstances (Doc. 45). At the hearing on February 10, 2015, counsel for Defendants was present, but Plaintiff failed to appear. Accordingly, the Court did not hear arguments regarding Plaintiff's attempts to exhaust.
CONCLUSIONS OF LAW
Summary Judgment Standard
Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 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 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)).
Exhaustion Requirements under the PLRA
The Prison Litigation Reform Act 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 ...