United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 193) of Magistrate Judge Philip M. Frazier recommending the Court grant the motion for summary judgment filed by defendants Lakeisha Hamby and Shelby Dunn (Doc. 140) and dismiss Count 5 to the extent it is against those defendants. Plaintiff Joseph Wilborn has objected to the Report (Doc. 197).
I. Report Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
On July 28, 2011, Wilborn was transferred from Menard Correctional Center to Tamms Correctional Center ("Tamms") late one night after being in an altercation. On arrival at Tamms, he was examined by nurses Hamby and Dunn. They observed that his shoulder was dislocated, gave him Tylenol, and placed him on the next available doctor call. The prison doctor saw Wilborn the following day, and Wilborn remained in the Health Care Unit ("HCU") until August 23, 2011. In this lawsuit, Wilborn complains that Hamby and Dunn did not immobilize and ice his dislocated shoulder, reduce the dislocation or arrange for a transfer to a hospital where he could immediately be seen by a doctor.
Wilborn wrote a grievance on September 23, 2011, and sent it to his counselor through the prison mail system. The counselor did not receive it, so Wilborn gave him a copy of the grievance on September 28, 2011. In that grievance, Wilborn complained that he did not receive medical attention from a doctor until July 29, 2011. He did not specifically refer to Hamby or Dunn or the treatment they provided him in that grievance but complained that "[a]ll the Tamms C.C. employees" should have arranged for the doctor to see him immediately and that Tamms should have had a doctor present at all hours of the day. After receiving a written response from his counselor on October 6, 2011, saying he was evaluated by a doctor at the first opportunity, Wilborn sent the grievance to the grievance officer. On November 7, 2011, the grievance officer denied it as untimely because Wilborn had submitted it to the grievance officer more than 60 days after the July 28, 2011, circumstances about which he complained.
Wilborn wrote an emergency grievance on September 16, 2012. In this grievance, he complained about the medical treatment he received on the night of July 29, 2011, and he specifically mentioned that Hamby and Dunn refused his request to be sent to a hospital outside the prison and refused to provide follow-up treatment for his injury. On October 9, 2012, the ARB rejected it as untimely.
III. Report and Objection
In the Report, Magistrate Judge Frazier found that Wilborn's September 16, 2012, grievance was untimely, as determined by the ARB. Therefore, it was not filed "in the place, and at the time, the prison's administrative rules require." Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) (internal citation and quotations omitted); see Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006) (requiring "proper exhaustion, " that is, compliance with administrative deadlines and other critical procedural rules so the agency can address the issues on the merits). The Illinois Department of Corrections ("IDOC") requires that a grievance "shall be filed within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance." 20 Ill. Admin. Code § 504.810(a). Wilborn knew of Hamby's and Dunn's conduct on July 28, 2011, so his 60 days began to run then and expired September 26, 2011. Thus, the September 16, 2012, grievance was not properly filed and did not serve to exhaust Wilborn's administrative remedies as to Hamby and Dunn as required by 42 U.S.C. § 1997e(a).
Magistrate Judge Frazier also found that Wilborn's September 23, 2011, grievance did not satisfy IDOC's requirement that a grievance "contain factual details regarding each aspect of the offender's complaint, including what happened, when, where, and the name of each person who is the subject of or who is otherwise involved in the complaint.... [or] as much descriptive information about the individual as possible." 20 Ill. Admin. Code § 504.810(b). Magistrate Judge Frazier noted that the gravamen of Wilborn's grievance was an objection to the policy of not having a doctor at the prison at all hours of the day and that Wilborn did not mention nurses or deficient nursing care while he waited to see a doctor. Magistrate Judge Frazier further found that Wilborn's criticism that "[a]ll the Tamms C.C. employees" failed to arrange for him to see a doctor immediately was not sufficient to alert the prison to his complaints about Hamby's and Dunn's conduct. Thus, the September 23, 2011, grievance also did not serve to exhaust Wilborn's administrative remedies as to Hamby and Dunn as required by 42 U.S.C. § 1997e(a).
In his objection, Wilborn argues that his September 23, 2011, grievance contained sufficient details to alert prison officials to the problem, as evidenced by his counselor's substantive response to the grievance. He further believes his complaint about "[a]ll employees" covers Hamby and Dunn and that it was unreasonable to expect him to provide their specific names in his grievance. He also faults his counselor for failing to respond to his grievance until more than 60 days after the incident, when it was too late to comply with the grievance timing requirements. Wilborn argues that since a counselor's response is necessary to file a grievance, the counselor's failure to respond to his grievance within 60 days of the incident was the reason he could not file a timely grievance. Wilborn also argues that his September 16, 2012, grievance was timely because he did not discover the alleged reason for Hamby's and Dunn's conduct - retaliation - until then.
The Court has reviewed the matter de novo and agrees with Magistrate Judge Frazier's conclusions, although for slightly ...