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Berry v. Talbot

United States District Court, C.D. Illinois, Urbana Division

January 9, 2018

TERRY LEE BERRY, Plaintiff,
v.
PAUL TALBOT, et al. Defendants.

          SUMMARY JUDGMENT ORDER

          SARA DARROW UNITED STATES DISTRICT JUDGE.

         Plaintiff, proceeding pro se and presently civilly committed at Rushville Treatment and Detention Facility, brought the present lawsuit pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to a serious medical need for events that allegedly transpired while he was incarcerated within the Illinois Department of Corrections. The matter comes before this Court for ruling on the Defendants' Motions for Summary Judgment on the issue of exhaustion of administrative remedies. (Docs. 47, 56). The motions are denied.

         LEGAL STANDARD

         Summary judgment should 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). All facts must be construed in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to be a “genuine” issue, there must be more than “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         FACTS

         Plaintiff filed this lawsuit on December 20, 2016. Pursuant to its Merit Review Opinion, the Court found that Plaintiff stated an Eighth Amendment claim for deliberate indifference to a serious medical need related to a forearm injury Plaintiff sustained in April 2009.

         The record discloses seven (7) grievances. The four (4) grievances Plaintiff filed in 2015 do not address the issues Plaintiff raised in this lawsuit. See (Doc. 48-2 at 18) (prison officials had thrown away Plaintiff's food); (Doc. 48-2 at 21) (confiscation of personal property); (Doc. 48-2 at 24) (discipline Plaintiff received for assaulting his cellmate); (Doc. 48-2 at 26) (excess books; cellmate masturbating in his presence).

         Grievances dated September 22, 2016 and December 24, 2016, respectively, address medical treatment for Plaintiff's forearm injury. Plaintiff's counselor responded to the September grievance in January 2017, and the ARB did not respond to Plaintiff's appeal until February 2017. (Docs. 48-2 at 2-4). Plaintiff sent the December grievance directly to the ARB, who received it on December 29, 2016. (Doc. 48-2 at 5-8).

         Finally, Plaintiff filed a grievance dated March 18, 2016. This grievance raises issues regarding (1) Plaintiff's medical treatment at Danville Correctional Center, the facility from which he was transferred on February 4, 2015; and (2) the medical treatment Plaintiff received at Lawrence Correctional Center, the facility where Plaintiff was incarcerated at the time. Plaintiff originally sent this grievance directly to the ARB. The ARB denied the grievance as to the Danville issues as untimely. As to the Lawrence issues, the ARB directed Plaintiff to attach responses from his counselor and grievance officer.

         Plaintiff resubmitted the March grievance to his counselor at Lawrence on May 31, 2016; the counselor responded to the grievance on August 22, 2016. (Doc. 48-2 at 12). The record does not disclose a response from the grievance officer. According to the file stamps, the ARB received this resubmitted grievance on September 22, 2016. The ARB denied the grievance as untimely. (Doc. 48-2 at 9).

         ANALYSIS

         Failure to exhaust is an affirmative defense, and therefore the burden of proof lies with the defendants. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). The Court must hold an evidentiary hearing if a disputed issue of material fact exists, see Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), but where none is present, an evidentiary hearing is unnecessary and the issue of exhaustion may be decided as a matter of law. Doss v. Gilkey, 649 F.Supp.2d 905, 912 (S.D. Ill. 2009).

         The Prison Litigation Reform Act (PLRA) provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such ...

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