United States District Court, S.D. Illinois
DARRIN W. SHATNER, Plaintiff,
MIKE ATCHISON, HARRINGTON, S. NWAOBASI and TIMOTHY VEATH Defendants.
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 60) of Magistrate Judge Philip M. Frazier recommending the Court grant the motion for summary judgment filed by defendant Dr. S. Nwaobasi (Doc. 44) and grant summary judgment for Nwaobasi on plaintiff Darrin W. Shatner's Eighth Amendment deliberate indifference to medical need claim. Shatner has objected to the Report (Doc. 62).
This case arose as a result of problems Shatner had with medical treatment for his ingrown toenails. While he was housed at Menard Correctional Center ("Menard"), he was seen by Nwaobasi, a medical doctor, and was scheduled for corrective surgery, but that surgery never happened. He was then transferred to Pontiac Correctional Center ("Pontiac") where he eventually received surgery to remove his toenails. In this case, he claims Nwaobasi was deliberately indifferent to his medical needs by causing delay in the prescribed surgery.
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. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. 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).
II. Report and Objection
In his Report, Magistrate Judge Frazier found that Shatner attempted to exhaust his administrative remedies for his toenail treatment problems at Menard twice after his transfer to Pontiac. On February 17, 2013, Shatner filed an emergency grievance about his treatment (or lack thereof) at Menard and sent it to the warden of Pontiac. Illinois Department of Corrections ("IDOC") rules, however, require that a grievance about incidents at another institution be sent directly to the Administrative Review Board ("ARB"). 20 Ill. Adm. Code 504.870(a)(4). The grievance was returned, and Shatner was told that it should have been sent to the ARB, not the warden of Pontiac. Shatner then filed his second grievance on March 19, 2013, and sent it straight to the ARB. In it, he complained of Menard staff's refusing to take him to the health care unit for his toenails. However, Shatner did not file that second grievance until more than 60 days after his transfer from Menard to Pontiac, the last possible time Nwaobasi could have been deliberately indifferent to Shatner's medical needs. IDOC rules require a grievance to be filed within 60 days of discovery of an incident, 20 Ill. Admin. Code § 504.810(a), so the ARB rejected it because it was late, did not find good cause for its lateness, and declined to consider the grievance on the merits.
In the Report, Magistrate Judge Frazier found that Shatner had not exhausted his available remedies because he had not filed his grievances in the way the IDOC rules required. Magistrate Judge Frazier further found that Shatner's two grievances did not give prison officials notice and a fair opportunity to correct Nwaobasi's medical decisions.
In his objection, Shatner discusses attempts to exhaust that Magistrate Judge Frazier did not address in the Report; he argues that he filed three grievances about Nwaobasi while he was housed at Menard, but that Menard personnel prevented him from using the grievance process by throwing those grievances away. Shatner further argues that Pontiac personnel misled him by telling him to file an emergency grievance rather than a grievance with the ARB. He also argues he did not need to name Nwaobasi in his grievances, although he claims to have described him in the discarded grievances he filed at Menard. The Court considers these questions de novo.
The Court held an evidentiary hearing on the matter on July 14, 2015, to supplement the evidence in the record. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Shatner was present in person appearing pro se, Nwaobasi was present through counsel Carla Tolbert, and defendants Mike Atchison, Harrington, and Timothy Veath were present through counsel Brent Colbert, who appeared by telephone. Nwaobasi presented two witnesses by videoconference: Regina Price, Shatner's primary correctional counselor while he was housed at Menard, and David Lingle, the clinical services supervisor while Shatner was housed at Pontiac. Shatner testified on his own behalf. The Court will discuss each witness' testimony as necessary in its discussion of Shatner's various attempts to exhaust administrative remedies against Nwaobasi.
A. Legal Standards
The Prison Litigation Reform Act provides that a prisoner may not file a § 1983 suit "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 87-88 (2006). Because the failure to exhaust administrative remedies is an affirmative defense, it is the defendant's burden to prove by a preponderance of the evidence that the plaintiff did not exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011).
A grievance must be filed "in the place, and at the time, the prison's administrative rules require... [and]... contain the sort of information that the administrative system requires." 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 ...