United States District Court, S.D. Illinois
Viverette, Plaintiff, Pro Se.
Christine Brooks, Lawrence CC, Defendant, represented by
Kevin J. Adrian, Brown & James.
James, Defendant, represented by Kevin J. Adrian, Brown &
Baker, Defendant, represented by Kevin J. Adrian, Brown &
Duncan, Defendant, represented by Michael Patrick Myhre,
Attorney General's Office.
REPORT AND RECOMMENDATION
G. WILKERSON, Magistrate Judge.
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. Â§ 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. Â§ 1997e(a). For the reasons set forth
below, it is RECOMMENDED that the Motion for Summary Judgment
on the Issue of Exhaustion of Administrative Remedies filed
by Defendants Brooks, James, and Baker (Doc. 29) and the
Motion for Summary Judgment filed by Defendant Duncan (Doc.
32) be GRANTED, and that the Court adopt the following
findings of fact and conclusions of law.
Jimmy Viverette, an inmate in the custody of the Illinois
Department of Corrections ("IDOC"), brings this
action pursuant to 42 U.S.C. Â§ 1983 alleging his
constitutional rights were violated while he was incarcerated
at Lawrence Correctional Center ("Lawrence"). More
specifically, Plaintiff complains that he was denied adequate
medical treatment for his leg injury. After an initial
screening of Plaintiff's complaint pursuant to 28 U.S.C.
Â§ 1915A, Plaintiff was allowed to proceed on the following
Count One: Defendants Christine Brooks, Nurse Jane Doe,
Travis James, and Noreen Baker were deliberately indifferent
to Plaintiff's serious medical needs, in violation of the
Eighth Amendment; Warden Duncan is a defendant in his
official capacity for purposes of injunctive relief.
Baker, Brooks, and James and Defendant Duncan filed motions
for summary judgment (Docs. 29 and 32) arguing Plaintiff
failed to exhaust his administrative remedies prior to filing
his lawsuit as required by the Prison Litigation Reform Act,
42 U.S.C. Â§ 1997e, et seq. While Defendants
acknowledge Plaintiff filed a grievance on June 13, 2015 and
a follow-up grievance on September 9, 2015, they contend that
said grievances had not been fully exhausted prior to
Plaintiff filing this lawsuit on July 1, 2015.
Plaintiff's June 13, 2015 grievance, which complains of
the events giving rise to this lawsuit, was filed as an
emergency grievance and received by the Chief Administrative
Officer ("CAO") for review on June 18, 2015 (Doc.
30-1, p. 1). The CAO found that an emergency was not
substantiated and Plaintiff then submitted his grievance
through the normal process ( Id. ). Plaintiff's
counselor received this grievance on June 22, 2015 and
provided a response on August 7, 2015 ( Id. ). There
is no evidence that Plaintiff submitted this grievance to the
Grievance Officer or CAO for a final review; however, it was
stamped as "Received" by the Administrative Review
Board ("ARB") on September 14, 2015 ( Id.
). The ARB sent its response to Plaintiff's grievance on
October 1, 2015 explaining that the "[g]rievance would
have been considered timely" if Plaintiff had forwarded
it to the Grievance Officer when he received it back from his
counselor (Doc. 30-5). Plaintiff was also instructed to
provide a copy of the Grievance Officer's and CAO's
response to the grievance. There is no other documentation
concerning this grievance.
the filing of his June 13, 2015 grievance, Plaintiff filed a
grievance dated September 9, 2015 wherein Plaintiff complains
that he did not receive the counselor's response to his
previous grievance (presumably the June 13, 2015 grievance)
until August 21, 2015, causing him to miss his deadlines
(Doc. 30-2). This grievance was also stamped as
"Received" by the ARB on September 14, 2015 (
Id. ). The ARB provided its response on October 1,
2015 explaining that Plaintiff's June 13, 2015 grievance
would have been considered timely if he had submitted the
grievance to the Grievance Officer and CAO for review (Doc.
conjunction with the filing of their motions for summary
judgment, Defendants filed Rule 56 Notices informing
Plaintiff of his obligation to file a response to the motions
within thirty days and advising him of the perils of failing
to respond ( see Docs. 31 and 34). Defendants'
notices also informed Plaintiff that his failure to file a
response by the deadline may, in the Court's discretion,
be considered an admission of the merits ...