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Smithh v. Butler

United States District Court, S.D. Illinois

February 5, 2018

MICHAEL SMITH, Plaintiff,
v.
KIMBERLY BUTLER, et al., Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN C. WILLIAMS United States Magistrate Judge

         I. Introduction

         Acting pro se, Plaintiff Michael Smith, an inmate at Menard Correctional Center, brought the present lawsuit alleging violations of his civil rights. Among the allegations raised by Plaintiff, he alleges violations of his rights relating to the care and treatment of a hand injury he suffered in May 2016. This matter is before the Court on two motions for summary judgment filed by Defendants (Docs. 39 and 48). Defendants contend that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). After reviewing the briefs, the undersigned held an evidentiary hearing, and this matter is now ripe for disposition. Since the undersigned finds that Plaintiff's administrative remedies were not available to him, the undersigned RECOMMENDS that the district judge DENY the motions for summary judgment.

         II. Background

         On February 22, 2017, Plaintiff filed the present lawsuit. (Doc. 1). In a merits review order pursuant to 28 U.S.C. 1915A, Chief Judge Reagan found that Plaintiff had successfully pleaded the following counts:

Count 1:Eighth Amendment deliberate indifference claim against Macdonough and the John Doe Lieutenant for refusing to summon medical staff after Plaintiff's hand was injured on May 30, 2016;
Count 2: Eighth Amendment deliberate indifference claim against Dr. Trost and Dr. Ritz for denying and delaying medical attention for Plaintiff's injured hand;
Count 4: First Amendment retaliation claim against Dr. Trost for denying Plaintiff a medical front-cuff permit after Plaintiff filed grievances against him;
Count 5: Eighth Amendment claims against C/O Larry for deliberate indifference and excessive force, for refusing to loosen Plaintiff's handcuffs or consult medical staff on December 23, 2016;
Count 7: Eighth Amendment deliberate indifference claim against Butler for failing to act on Plaintiff's grievances complaining about lack of medical care after the May 30, 2016 hand injury.

(Doc. 7, p. 6).

         On June 17, 2016, Plaintiff prepared a grievance regarding lack of medical treatment. (Doc. 49-1, p. 9). In that grievance, Plaintiff wrote that he suffered an injury to his hand on May 30, 2016, and that he notified staff of the injury. (Id.). He wrote that the staff, however, delayed notifying or escorting him to the healthcare unit. (Id.). Plaintiff also complained of Dr. Trost's failure to adequately examine his injury. (Id. at 10).

         This grievance was sent by Plaintiff as an emergency, but was deemed to not be an emergency by Warden Butler on June 26, 2016. (Id. at 9). After receiving the grievance back from the warden, Plaintiff submitted it to his counselor, who responded on July 8, 2016. (Id.). Plaintiff testified that he then submitted the grievance, along with a follow-up grievance dated July 22nd, to the grievance office. (Doc. 60, p. 31). Plaintiff did not get either of those grievances back. (Id. at 38). According to Plaintiff's testimony, at the same time he initially prepared the June 17th grievance, he also prepared an identical duplicate grievance, which he sent directly to the ARB. (Id. at 24 - 25). He did this in order to attempt to make a record of his grievance submissions. (Id. at 25).

         In his Complaint, Plaintiff alleges that in July 2016, Dr. Trost sought an orthopedic consult for Plaintiff, but that the consult request was denied by Dr. Ritz. (Doc. 7, p. 3 - 4). After Plaintiff submitted a sick call request at the end of July 2016 regarding pain and swelling in his hand, he submitted another grievance on September 30, 2016, “which incorporated the issues from the 7/22/16 grievance and the and the 6/17/2016 grievance.” (Doc. 60, p. 27). Plaintiff did not receive the September grievance back. (Id. at 35). In ...


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