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Diaz-Guillen v. Swanson

United States District Court, S.D. Illinois

February 27, 2018

LUIS DIAZ-GUILLEN, Plaintiff,
v.
JAY SWANSON, Defendant.

          REPORT AND RECOMMENDATION

          DONALD G. WILKERSON United States Magistrate Judge

         This 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.

         Findings of Fact

         Procedural Facts

         Plaintiff 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.[1] 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).

         Background Facts

         Diaz-Guillen 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).

         During 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).

         During 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.

         As to 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.

         Conclusions of Law

         Summary Judgment Standard

         Summary 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.

         Exhaustion of ...


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