United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
Johnson has asserted claims against the United States under
the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), and
against several government employees under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). Johnson's claims arise from his
incarceration at the Chicago Metropolitan Correctional Center
(MCC). On May 3, 2014, another inmate attacked Johnson,
striking him across the face with a wooden push broom.
Johnson suffered severe injuries to his face and head. He was
taken to the health services unit, where a nurse cleaned and
bandaged his wounds. Johnson was then taken to segregation.
On May 19, 2014, medical staff took x-rays of Johnson's
head and sent him to Thorek Memorial Hospital. At the
hospital, a CT scan revealed three fractures to bones in
count two of his complaint, Johnson asserts a claim that MCC
personnel were deliberately indifferent to his medical needs.
He essentially claims that treatment was unreasonably delayed
or denied between May 3 and May 19, 2014. Defendants argue
that Johnson failed to exhaust prison grievance remedies with
regard to this claim, contrary to the requirements of the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The
Court denied their motion for summary judgment due to
significant factual disputes but ordered an evidentiary
hearing under Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008). The hearing was conducted in late October 2016.
This constitutes the Court's findings of fact and
conclusions of law.
3, 2014, the day of the attack, correctional staff at the MCC
took Johnson to the health care unit. He was seen by a nurse
named Alex Folami and told Folami about his facial pain,
indicating that he thought his jaw might be broken. No x-rays
were taken. Johnson was prescribed ibuprofen. He was then
placed in a segregation unit at the MCC.
next time that Johnson was examined by medical personnel at
the MCC for his facial injuries appears to have been on May
15, 2014, when he was examined at the segregation unit by a
nurse named Kistler and was prescribed additional pain
medication. Either as a result of that visit or via some
other mechanism, Johnson was examined by Dr. Brij Mohan at
the medical unit on May 19, 2014. An x-ray was taken and
showed a left zygomatic arch fracture. For this reason and
because of the symptoms that Johnson reported, he was sent to
the emergency room at Thorek Hospital.
deliberate indifference claim focuses on the period from May
3 through May 19, a total of sixteen days. He alleges that
correctional and medical staff were deliberately indifferent
to his need for further medical care during this period.
Specifically, in a memorandum filed prior to the
Pavey hearing, Johnson said he is "willing to
agree that the gravamen of his Bivens case as to
medical treatment is the deliberate indifference occurring on
May 3, 2014 and continuing until his ultimate referral to
Thorek Hospital on May 19, 2014 when his factual fractures
were diagnosed after they had improperly healed."
Pl.'s Mot. for Prehr'g Conf. ¶ 4.
hearing, Johnson testified that on May 4, the day after the
attack, he still had significant pain, so he began to ask for
additional medical attention. He did not know the nature of
his injuries and did not know what type of further treatment
he needed. He also testified that he made repeated oral
requests to correctional staff for additional medical care.
Johnson testified that he was told he had to talk to medical
staff; he asked correctional staff to contact medical staff
on his behalf; and he was later told by correctional staff
that he would have to fill out a sick call slip. Finally,
Johnson testified that over the period at issue, he filled
out several sick call slips complaining about his facial pain
and asking to see a doctor. The Court found Johnson's
testimony on these points to be credible.
testified that on May 8, a medical doctor, Dr. Mohan, came
through the segregation unit. Johnson spoke with Dr. Mohan
through the chuckhole on his cell door and, he says, told Dr.
Mohan about his facial pain. Dr. Mohan, Johnson says, took no
action. The Court found this testimony credible.
is no record of Johnson submitting any written grievances (as
contrasted with sick call slips) between May 4 and May 16
regarding the delay or denial of follow-up medical treatment
for his facial injuries. During this period, Johnson
submitted grievance forms on other subjects, including one on
May 6 objecting to being written up for the May 3 fight and
asking to press charges and another on May 14 seeking further
medical care for an earlier knee injury. Johnson testified
that on May 16, he asked a counselor for additional grievance
forms and submitted on that date a grievance regarding the
denial of medical care for his facial injuries. There is no
record of such a grievance having been submitted, and
defendants deny that Johnson submitted one. The Court need
not resolve this conflict in the evidence for the reasons
argue that Johnson failed to exhaust administrative remedies
regarding his claim for denial or delay of medical care for
his facial injuries because he never even submitted a
grievance, let alone pursue it to conclusion. They seek
dismissal of Johnson's medical care claim on this basis.
In response, Johnson relies on the Seventh Circuit's
decision in White v. Bukowski, 800 F.3d 392 (7th
Cir. 2015). The plaintiff in White alleged
deliberate indifference to her need for prenatal care and for
prompt transport to a hospital to deliver her baby while she
was in temporary custody at a county jail. She arrived at the
hospital about eight months pregnant. After being at the jail
for eleven days, the plaintiff experienced pain and was
transported to a hospital, where she gave birth. The child
suffered serious birth defects, allegedly due to oxygen
deprivation caused by displacement of the placenta. The
plaintiff contended that if the defendants had taken a proper
medical history when she first arrived at the jail and had
promptly responded to her requests for medical assistance,
she would have received appropriate medical treatment sooner
and the injury to her child would not have occurred. See
Id . at 393-94. Defendants sought dismissal due to
failure to exhaust. In response, the plaintiff contended that
there were no grievance remedies were available at the
relevant time. The Seventh Circuit agreed. The court noted
that under the PLRA, a plaintiff must exhaust "such
administrative remedies as are available."
Id. at 395 (quoting 42 U.S.C. § 1997e(a))
(emphasis added). It cited the following as an example of
"Suppose the prisoner breaks his leg and claims delay in
setting the bone is cruel and unusual punishment. If the
injury has healed by the time suit begins, nothing other than
damages could be a 'remedy, ' and if the
administrative process cannot provide compensation then there
is no administrative remedy to exhaust."
Id. (quoting Perez v. Wis. Dep't of
Corr., 182 F.3d 532, 538 (7th Cir. 1999)). With regard
to the plaintiff in White, the court stated:
[H]ow could a prisoner be expected to file a grievance that
would be academic because no response would benefit him or
her in the slightest? Yet that appears to be the situation of
the plaintiff in this case even more clearly than that of the
prisoner in the hypothetical case discussed in Perez v.
Wisconsin Department of Corrections, supra. In short, if
one has no remedy, one has no duty to exhaust remedies.
Id. The court specifically rejected decisions from
other circuits holding that "even if the jail or prison
can do nothing whatever for the complaining prisoner, and
even if that's obvious to a prisoner who not unreasonable
believes himself to be a victim of deliberate indifference .
. .-the prisoner must ...