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Newcomb v. Wexford Health Services, Inc.

United States District Court, S.D. Illinois

February 6, 2017

KEVIN D. NEWCOMB, Plaintiff,
v.
WEXFORD HEALTH SERVICES, INC., JOHN COE, BETH TREDWAY, and STEPHEN B. DUNCAN, Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN C. WILLIAMS United States Magistrate Judge

         Introduction

         Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Kevin Newcomb filed his complaint against Wexford Health Services, Inc., John Coe, Beth Tredway, and Stephen B. Duncan alleging that the Defendants were deliberately indifferent in (Count 1) failing to provide him with AFO braces, long term physical therapy, or a referral to a neurologist, and (Count 2) placing him in segregation without a wheelchair or AFO braces which hindered his ability to use the toilet or exercise. This matter is before the Court on a motion for summary judgment filed by Stephen B. Duncan and Beth Tredway (Docs. 45 and 46). Defendants Duncan and Tredway argue that Plaintiff failed to exhaust his administrative remedies against them prior to filing suit. Plaintiff has filed a response (Doc. 54) in opposition to the motion. The matter has now been referred to United States Magistrate Judge Stephen C. Williams by United States District Judge Michael J. Reagan pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a). The undersigned held an evidentiary hearing on January 20, 2017. Based on the following, it is RECOMMENDED that the Court GRANT Defendants' motion for summary judgment.

         Findings of Fact

         A. Factual and Procedural Background

         On December 15, 2015, Plaintiff filed his complaint against Defendants Wexford Health Services, Inc., John Coe, Stephen Duncan, and Beth Tredway for their deliberate indifference in failing to provide him with braces, therapy, or a wheelchair (Doc. 1). As narrowed by the Court's threshold order (Doc. 6), Plaintiff's complaint alleges that Defendants were deliberately indifferent in failing to provide him with AFO braces, long term physical therapy, and a referral to a neurologist (Count 1), as well as in failing to provide him with AFO braces or a wheelchair while he was in segregation (Count 2). Specifically, Plaintiff's complaint alleges that he suffers from cerebral palsy and that in 2014 his condition deteriorated while at Illinois River Correctional Center and he was sent to the hospital (Doc. 6, p. 1). At that time, he alleges that the medical providers recommended ankle foot orthosis (“AFO braces”), long term physical therapy, and further examination by a neurologist (Id.). Before he could receive treatment, however, he was transferred to Lawrence Correctional Center on January 21, 2015 (Id.). At Lawrence, Plaintiff was provided a “pull up wrap” for sports injuries instead of the AFO braces (Id.). He received physical therapy for only five weeks and never saw a neurologist (Id.). Plaintiff was also placed in segregation and was not allowed to use his wheelchair (Doc. 6, p. 1). Plaintiff alleges that, in addition to Wexford and the medical Defendant John Coe, Lawrence officials Stephen Duncan (warden) and Beth Tredway (assistant warden) denied him medical care due to the fact that Wexford did not want inmates sent out for care as such care is expensive (Id. at p. 2).

         This matter is before the Court on a summary judgment filed by Defendants Stephen B. Duncan and Beth Tredway for failure to exhaust administrative remedies (Docs. 45 and 46). Defendants argue that Plaintiff failed to exhaust his administrative remedies because he did not wait for a response to the grievances at the institutional level before submitting the grievances to the ARB. Plaintiff attaches three grievances to his complaint. Two of those grievances are dated October 25, 2015 and are marked as emergency grievances (Doc. 103, p. 2-3, 8-9). Plaintiff's first grievance states that Warden Duncan, Dr. Coe, and Wexford Medical Care were deliberately indifferent to his case (Doc. 1-3, p. 2-3). That grievance alleges that his wheelchair was taken away from him because he made a knife out of the parts, an accusation he admits is true (Id.). But Plaintiff argues that he needs his wheelchair but his requests have been refused and he has fell down eight times and voided on himself four times due to not having a wheelchair (Id.). That grievance was received by the ARB on November 19, 2015 and returned to Plaintiff because it did not include a counselor, grievance officer, or chief administrative officer response (Doc. 1-3, p. 1).

         Plaintiff's second grievance dated October 25, 2015 alleges that he was recommended physical therapy on December 22, 2014 by an outside doctor who also requested a referral to a neurologist and AFO braces and Wexford and IDOC have refused to provide him with these items (Doc. 1-3, p. 8-9). Plaintiff's grievance alleges that Dr. Coe told him that the warden instructed him not to send inmates out of the facility for medical care unless it was life or death because they were broke (Id.). Coe also would only provide Plaintiff with a sport brace instead of long term device to support his injuries related to cerebral palsy (Id.). He also only received five weeks of physical therapy before it was cancelled (Id.). Plaintiff marked the grievance as an emergency on October 25, 2015 and it was received by the ARB on November 19, 2015. The grievance was returned because it failed to include a response from the counselor, grievance officer, or chief administrative officer (Doc. 1-3, p. 7).

         In addition to the two October 25, 2015 grievances, the ARB also received a grievance dated October 27, 2015. That grievance was also marked as an emergency (Doc. 1-3, p. 11-12). Plaintiff alleged in that grievance that Warden Duncan received an emergency grievance on October 4 stating that he feared for his life due to being threatened by gang members which the warden returned as not an emergency (Doc. 1-3, p. 11). Plaintiff alleges that because his requests for protection were denied, he made a knife, although he alleges he only got half way through the process of making the knife when he decided it was a bad idea and destroyed it (Id. at p. 11-12). Plaintiff grieved the failure to protect him by the guards at Lawrence (Id.). That grievance was also received by the ARB on November 19, 2015 and returned to Plaintiff for failing to attach responses from his counselor, grievance officer, and chief administrative officer (Doc. 1-3, p. 10).

         The undersigned notes that along with these grievances, the ARB also received a letter from Plaintiff which indicated that he sent the three grievances to Warden Duncan on two occasions in the month prior to submitting the grievances to the ARB (Doc. 1-2, p. 11). The grievances were labeled emergency grievances and Duncan never responded to any of them (Id.). He put in several requests regarding the status of the grievances but never heard back from anyone (Id.).

         Defendant Duncan argues that Plaintiff failed to exhaust his administrative remedies as to him because he did not provide the proper documents to the ARB, including responses from the counselor, grievance officer, and chief administrative officer. Plaintiff also failed to submit any further documentation to the ARB after receiving the ARB's response. Defendant Tredway argues that neither of the October 25, 2015 grievances list her or grieve any claims against her.

         Plaintiff, in response, argues that the prison has an unfair advantage in the grievance process and have sought to deny Plaintiff his right to exhaust his claims. Plaintiff also offered an affidavit indicating that Counselor Collin Ray tore up grievances in front of him and the grievance officer never provided him responses to any grievances he ever filed while at Lawrence Correctional Center (Doc. 54, p. 9). Plaintiff states that he believes the system is rigged given the low percentage of grievances in which inmates actually receive their requested relief and testifies that he wrote to the ARB to inform them that his grievances are being destroyed at Lawrence (Id.). Plaintiff believes that on several occasions where he submitted grievances they were not returned because officials throw grievances away in order to keep inmates from properly exhausting (Doc. 54, p. 11). Plaintiff states that there are several grievances against all of the Defendants that he wrote, but they were destroyed by his counselor (Id. at p. 9). B. Pavey Hearing As there is a dispute of fact as to whether Plaintiff was thwarted in his attempts to exhaust his administrative remedies when his emergency grievances were not returned, the Court held an evidentiary hearing on January 20, 2017.

         Defendants offered no evidence at the evidentiary hearing. They only argued that neither grievance mentioned Beth Tredway.

         Plaintiff testified as to his emergency grievances. Plaintiff testified that he spoke with Tredway on two occasions before she was terminated and handed her one of the emergency grievances. He testified that one of the October 25 grievances mentioned Tredway and stated that he brought the issues up to her initially but she refused to help. Plaintiff testified that Tredway was later fired by the prison. He stated that his October 25 grievance indicated that Tredway was fired for issues regarding the Inmate Benefit Fund. ...


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