United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
G. WILKERSON United States Magistrate Judge
matter has been referred to United States Magistrate Judge
Donald G. Wilkerson by United States District Judge Nancy J.
Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B),
Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a)
for a Report and Recommendation on the question of whether
Plaintiff exhausted his administrative remedies prior to
filing this lawsuit, as required by the Prison Litigation
Reform Act, 28 U.S.C. § 1997e(a). For the reasons set
forth below, it is RECOMMENDED the Motion
for Summary Judgment for Failure to Exhaust Administrative
Remedies (Doc. 66) filed by Defendant Wexford be
DENIED, and that the Court adopts the
following findings of fact and conclusions of law.
Luis M. Diaz-Guillen, an inmate in the custody of the
Illinois Department of Corrections (“IDOC”),
filed this lawsuit on October 6, 2015 under 42 U.S.C. §
1983. The Court conducted a review pursuant to 28 U.S.C.
§ 1915A and Diaz-Gullien was allowed to proceed on
claims against Defendants Shah and Swanson alleging
deliberate indifference to his serious medical
needs. On May 18, 2017 Defendant Swanson filed a
Motion for Judgment on the Pleadings (Doc. 66). Upon review,
the Court construed the document as a Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies and
entered an order converting the motion (Doc. 80). The Court
further granted Diaz-Gullien through February 22, 2018 to
file a response (Doc. 80).
was detained in the Fayette County Jail from February 4, 2011
to August 23, 2012 (Doc. 16 ¶¶ 1, 7). After
approximately seven months of detention, Diaz-Gullien alleges
he became sick from the conditions of his confinement (Doc.
16 ¶ 3). By September 18, 2011, his face, ear, throat,
and sinus cavity were “enormously swollen and
drain[ing] yellow mucus” (Doc. 16 ¶ 3).
Diaz-Gullien alleges that beginning in August, 2011, he told
Dr. Shah about his pain and the drainage from his nose and
ear (Doc. 16 ¶ 4), but it was not until May 8, 2012 that
Dr. Shah referred him to a “dental specialist”
(Doc. 16 ¶ 5). The dental specialist then referred
Diaz-Guillen to Defendant Dr. Swanson, who diagnosed him with
“Hemangioma Maxillar” and recommended surgery
(Doc. 16 ¶ 6).
a hearing on the pending motion, Diaz-Gullien stated he
originally refused to consent to the surgery because Swanson
would not explain anything about the surgery to him. It is
undisputed that Diaz-Gullien requested a second opinion (Doc.
66, p. 2). As far as the Court is aware, he never received a
second opinion. When Diaz-Gullien was transferred to the IDOC
several months later, and realized Dr. Swanson would again be
treating him, he consented. Ultimately, what was removed
turned out to be a cancerous mass (Doc. 16 ¶ 6).
Additionally, after surgically removing the cancerous growth
that had amassed in Diaz-Guillen's mouth, the amended
complaint alleges the doctors refused to provide him with
pain medication (Doc. 8, p. 5).
the hearing, Diaz-Guillen stated he was not informed about
the grievance procedure at Fayette County Jail by any
administrative officials or employees. Rather, toward the end
of his stay at Fayette, he was told by another inmate he
could ask the guards for a grievance form. Diaz-Guillen
further testified that, although he could read and write
Spanish, he spoke little English when he was first
incarcerated at Fayette. No one at the jail spoke to him in
Spanish and the only time he had an interpreter was when he
was at court. There was no evidence introduced at the hearing
regarding the Fayette County Jail grievance procedure, appeal
process or whether any forms were available in Spanish.
grievances filed once he was transferred to the IDOC,
Diaz-Guillen testified he filed a grievance regarding Dr.
Swanson's medical care, but that he did not know the
doctor's exact name and therefore filed against
“the specialist.” He further testified he was
transferred several times after filing his grievance.
judgment is proper only where the moving party can
demonstrate that no genuine issue of material fact exists and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Ruffin-Thompkins v. Experian
Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir.
2005). All facts and reasonable inferences must be construed
in favor of the non-moving party. Blow v. Bijora,
Inc., 855 F.3d 793, 797 (7th Cir. 2017) (citing
Calumet River Fleeting, Inc. v. Int'l Union of Operating
Eng'rs, Local 150, AFL-CIO, 824 F.3d 645, 647-48
(7th Cir. 2016)). The judge's role at summary judgment is
not to weigh the evidence or assess the facts, but simply to
determine whether there is a genuine issue for trial.
Id. at 259. The question is can there be only one
reasonable conclusion based on the evidence, or could
reasonable minds differ? Id. at 250-51.