United States District Court, Southern District of Illinois
DEMETRIOS E. BRACEY, Plaintiff,
CLAUDIA DOWTY, JAMES OCHS, STEPHEN DUNCAN, and JOHN DOE, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN, Chief Judge United States District Court.
Plaintiff Demetrios Bracey, currently represented by counsel, filed his complaint pro se on April 14, 2014, alleging constitutional violations pursuant to 42 U.S.C. § 1983. After the Court’s threshold review, the only claims which remained were claims of deliberate indifference to medical care. Specifically, Plaintiff alleges he suffered from lower back pain due to a prior injury and that, sometime in August 2013, he was prescribed pain medication for his lower back. However, on August 29, 2013 (before he received his prescription), he slipped and fell on a wet floor outside his cell, then on the way to the yard felt an extreme pain in his back (Doc. 4, p. 1).
Plaintiff asked Defendant Ochs for help, but Ochs sent him back to his housing unit and refused to summon medical help (Id. at 1-2). Plaintiff then told Officer Clark about his injuries, informed him of the pre-existing back problem, and asked for medical attention (Id. at 2). Clark requested that Defendant Dowty, a nurse, see Plaintiff, but she refused because Plaintiff was not on her appointment list. Instead, she said Plaintiff should put in a sick call slip (Id.).
Clark contacted Dowty later in the day about Plaintiff’s injuries, but she again refused to see him. Plaintiff asked Clark to make a report of his contact, but but Clark refused (Id.). Clark did contact the health care unit for Plaintiff, but someone in the unit stated that-since Plaintiff had recently been seen for back pain-that there was nothing they could do, and that he would have to wait for his pain medication. Clark would not disclose to Plaintiff the name of the individual in the health care unit with whom he spoke (Id.). Plaintiff received the pain medication days later, but it had little effect on his pain.
Plaintiff’s Count 1 alleges that Defendant Dowty and an unknown medical provider (John/Jane Doe, who was contacted by Clark) acted with deliberate indifference to Plaintiff’s serious medical needs by refusing to evaluate or treat Plaintiff for his back pain. Count 2 alleges that Defendant Ochs was deliberately indifferent by refusing to summon medical assistance for Plaintiff following his slip and fall.
Now before the Court is Defendant James Ochs’ Motion for Summary Judgment on the Issue of Exhaustion (Doc. 32). Defendant Ochs argues that Plaintiff failed to (as required by the Prison Litigation Reform Act, “PLRA, ” 42 U.S.C. § 1997e(a)), exhaust his administrative remedies prior to filing suit.
Plaintiff wrote two grievances regarding his slip and fall and the medical treatment he received for that injury (Doc. 33-3 at 3–13). Both grievances are dated August 29, 2013, and state that Defendant Ochs denied him medical treatment after his fall (Id.). One grievance was reviewed by his counselor on September 5, 2013; the other was reviewed on September 6, 2013 (Id. at 3 and 9). The grievances were denied by the grievance officer on September 19, 2013, and affirmed by the chief administrative officer on April 4, 2014 (Id. at 2). Plaintiff submitted his appeal to the ARB on April 15, 2014 (Id.). The grievances were received by the ARB on April 21, 2014 and ultimately denied on September 11, 2014, with the decision affirmed by IDOC Director Godinez on September 16, 2014 (Id. at p. 1).
Plaintiff filed the complaint in this case on April 14, 2014 (Doc. 1).
Plaintiff also submitted an emergency grievance on his injuries and interactions with Defendant Ochs on March 8, 2014 (Doc. 33-2 at p. 2-5). The warden received the grievance on March 19, 2014, and deemed it not an emergency-instructing Plaintiff to submit his grievance in the normal fashion (Id. at 2). Plaintiff appealed that grievance to the ARB, where it was received on April 2, 2014 (Id.). The ARB returned the grievance on May 7, 2014 (again, after Plaintiff filed the instant lawsuit), finding that Plaintiff had failed to include his counselor’s and grievance officer’s responses (Id. at p. 1).
Plaintiff has filed a response to the instant motion, indicating that he exhausted his administrative remedies as of September 2014, and acknowledging that his complaint was filed on April 14, 2014 (Doc. 35). Plaintiff asks that if this Court dismisses his complaint, it should be dismissed without prejudice, so that Plaintiff may re-file his case against Defendant Ochs now that he has exhausted his administrative remedies.
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. §1997e(a). That statute 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.” Id. (emphasis added). The Seventh Circuit requires strict adherence to the PLRA’s exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that ‘[t]his circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending. Id. Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require.” Pozo v. M cCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to properly utilize a prison’s grievance process, “the prison administrative authority can refuse to hear the case, and the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.
Under Pavey, the Seventh Circuit held that “debatable factual issues relating to the defense of failure to exhaust administrative remedies” are not required to be decided by a jury, but are to be determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-41(7th Cir. 2008). Thus, where failure to exhaust administrative ...