United States District Court, S.D. Illinois
DUSTIN M. JAMES, Plaintiff,
DEBRA HALE, et al., Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE
matter comes before the court on the Report and
Recommendation (“R & R”) (Doc. 57) of
Magistrate Judge Donald G. Wilkerson with regard to Defendant
Debra Hale's Motion (Doc. 40) for Summary Judgment for
Failure to Exhaust Administrative Remedies. Defendant Hale
filed a timely objection to the R & R (Doc. 60) and
plaintiff filed a response (Doc. 61) to the objection.
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. 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).
The Court has received an objection from the defendant and
will review de novo those portions of the report.
was incarcerated in the St. Clair County Jail and assaulted
by another inmate in January 2015. After the attack, he was
at an outside hospital and diagnosed with an orbital fracture
and possible concussion. The plaintiff appeared to be doing
well for about a week and then shortly thereafter, he started
to have swelling, numbness and blurred vision. He verbally
informed and sought treatment from Defendant Hale, who is a
registered nurse at the St. Clair facility, until the end of
January. Then, on February 11, 2015, he completed a sick call
request and a Captains request stating that his condition was
worsening. He did not receive a response. He completed a
second Captains request on February 17, 2015 and did not
receive a response. Plaintiff was taken to segregation on
February 20, 2015, and also filed a Captains request on that
day and did not receive a response.
Judge Wilkerson held a hearing with regard to the
defendant's motion on September 28, 2016. At the hearing,
the plaintiff testified that he requested “grievance
forms” and was informed that the Captains request
served the same function and that grievance forms were not
available. The Magistrate Judge found the plaintiff's
testimony to be credible. As such, the R & R recommends
the denial of the defendant's motion based upon a finding
that administrative remedies were unavailable to the
judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000).
The reviewing court must construe the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008); Spath, 211 F.3d at 396.
noted in the R & R, the written grievance procedure for
St. Clair County Jail states that, “A Captains request
must be submitted prior to the grievance procedure.”
(Doc. 41-1, bold in original.) Defendant argues that the R
& R “ignored the sworn affidavit of Officer Yvonne
McCall, in which she avers that . . . no Captain's
Requests or formal grievances submitted by plaintiff could be
located.” Therefore, “[i]f the plaintiff actually
filed said Captain's Requests, the St. Clair County Jail
would have a record of them, whether or not they were
responded to.” (Doc. 60, pg 3-4). Further, the
defendant argues that even if the Court believes that the
plaintiff filed three Captains requests, he still failed to
exhaust his administrative remedies as outlined in the St.
Clair County Detainee Rules and Regulations because,
“[t]he requirement to submit a Captain's request is
independent of the actual grievance procedure, as evidence by
the fact that it is included merely in a note to the
grievance procedure, rather than the enumerated steps of said
argument that the Captains request is “merely in a
note” is not well taken given that the requirement to
submit a Captains request is printed in large bold letters -
indicating that a Captains request was a prerequisite to the
grievance procedure. Further, the plaintiff's testified
that he requested grievance forms and was told that a
Captains request serves the same purpose and that he was
never provided a grievance form.
magistrate judge was in the best position to gauge the
credibility of the plaintiff's testimony at the hearing
and he found the plaintiff's testimony credible. As
correctly stated in the R & R, “[a]n inmate is
required to exhaust only those administrative remedies
available to him” and that that “availability of
a remedy does not depend on the rules and regulations as they
appear on paper, but on ‘whether the paper process was
in reality open for the prisoner to pursue.” (Doc. 57,
pgs 6 -7)(citations omitted.)
Court has reviewed Defendant Hale's Motion for Summary
Judgment de novo and finds that administrative
remedies were not available to the plaintiff. The Court
further finds that the unobjected to portions of the R &
R are not clearly erroneous.
the Court hereby ADOPTS the Report and Recommendation (Doc.
57) in its entirety and DENIES Defendant Hale's Motion