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Viverette v. Brooks

United States District Court, S.D. Illinois

August 9, 2016

JIMMY VIVERETTE, Plaintiff,
v.
CHRISTINE BROOKS, UNKNOWN PARTY, TRAVIS JAMES, NOREEN BAKER, and STEVE DUNCAN, Defendants.

          Jimmy Viverette, Plaintiff, Pro Se.

          Christine Brooks, Lawrence CC, Defendant, represented by Kevin J. Adrian, Brown & James.

          Travis James, Defendant, represented by Kevin J. Adrian, Brown & James.

          Noreen Baker, Defendant, represented by Kevin J. Adrian, Brown & James.

          Steve Duncan, Defendant, represented by Michael Patrick Myhre, Attorney General's Office.

          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 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.

         FINDINGS OF FACT

         Plaintiff Jimmy Viverette, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), brings this action pursuant to 42 U.S.C. § 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. § 1915A, Plaintiff was allowed to proceed on the following count:

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.

         Defendants 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. § 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.

         Specifically, 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.

         Following 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. 30-5).

         In 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 ...


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