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Curry v. Butler

United States District Court, S.D. Illinois

June 15, 2018

STEVEN CURRY, Plaintiff,
v.
KIMBERLY BUTLER, et al., Defendants.

          REPORT AND RECOMMENDATION

          Hon. Reona J. Daly United States Magistrate Judge.

         The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge David R. Herndon 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 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 that the District Court ADOPT the following findings of fact and conclusions of law, and Defendants' Motions (Docs. 97 and 100) be GRANTED.

         Findings of Fact

         Plaintiff, an inmate in the custody of the Illinois Department of Corrections, filed this lawsuit pursuant to 42 U.S.C. §1983 alleging his constitutional rights were violated while he was incarcerated at Menard Correctional Center (“Menard”). It is undisputed that Plaintiff has been diagnosed with a small ventricular septal defect, or hole, between the right and left ventricles of his heart. Plaintiff has been seen by a cardiologist but alleges he is receiving inadequate medical care for his condition because he has not received surgical repair. Plaintiff is currently proceeding on the following claims:

Count 1 - Butler, Brooks, Walls, Trost, Siddiqui, and Lashbrook were deliberately indifferent to Plaintiff's serious heart condition in violation of the Eighth Amendment;
Count 2 - Wexford Health Sources had an unconstitutional policy or custom that prevented Plaintiff from receiving treatment for his serious heart condition in violation of the Eighth Amendment;
Count 3 - Butler, Trost, and Lashbrook were deliberately indifferent to Plaintiff's unconstitutional conditions of confinement in violation of the Eighth Amendment.

         Defendants Trost, Siddiqui and Wexford assert Plaintiff failed to properly and fully exhaust his administrative remedies and that Plaintiff failed to name Siddiqui or Wexford in his grievances. Defendants Brooks, Butler, Lashbrook and Walls assert Plaintiff did not follow proper procedure to fully exhaust his administrative remedies and did not properly identify them in his grievances.

         The Court notes Plaintiff has attached grievances to multiple documents filed in this case. In addition to the grievances Plaintiff filed with his Response to the Motions for Summary Judgment based on Exhaustion (Doc. 104), Plaintiff attached grievances to his Complaint (Doc. 1) and as Exhibits to his Motion for Preliminary Injunction (Doc. 81). The Court reviews each of the following relevant grievances:

         November 2, 2014: This grievance states that it concerns deprivations of Curry's medical treatment. He explains that he suffers from shortness of breath and that medical personnel have confirmed it is the result of a hole in his heart. Curry states that he was seen by Dr. Trost and referred to an outside hospital. However, following his visit to the outside hospital, Dr. Trost has not provided follow-up care. Curry requests he be provided with heart surgery to repair the hole.

         The grievance was submitted as an emergency. The Warden reviewed the grievance on November 20, 2014 and denied that it was an emergency. The denial stated that the offender should submit the grievance in the normal manner. On November 21, 2014, the Nursing Supervisor reviewed the grievance and drafted a Memorandum to Curry stating that she reviewed his medical record. She noted his history of being stabbed in the heart, and that he had been given the results of echo testing on September 24, 2014 by the nurse practitioner. She told him to go to the health care unit if his symptoms worsened. There is no further documentation that Curry submitted the grievance to the Counselor or Grievance Officer in the normal manner. The grievance was appealed directly to the ARB on January 13, 2015. The ARB returned the grievance on January 30, 2015, seeking documentation from the Counselor and Grievance Officer if timely. There is no further record concerning this grievance.

         May 18, 2015: This grievance states that it concerns improper medical treatment. Curry states that he continues to have “heart pains” and that he has repeatedly put in requests for sick call and been placed in the physician call line. He has been seen by Dr. Trost who recommended he receive a TEE, but the TEE was denied. His requested relief is to be sent to an outside hospital for the TEE recommended by Trost.

         The grievance was reviewed by the counselor who responded on July 31, 2015 that he had submitted the grievance to the HCU Administrator Gail Walls. Walls stated that the request for the TEE was presented in collegial and denied and that Curry was being monitored on site. The Counselor noted that if Curry were to appeal the denial of the grievance, he needed to attach the Memorandum from Gail Walls. There is no further documentation concerning this grievance.

         June 2, 2017: This grievance was submitted as an emergency. Curry states that he is being deprived of proper medical attention for his heart condition. He also states that he is subjected to unsanitary living conditions. He mentions that the nurses, doctors and medical administrators at Menard are aware of his condition and that he has been seen by Dr. Trost but that he has not received the recommended medical treatment. He seeks to be sent to a hospital for a TEE procedure as recommended by Dr. Trost. His requested relief was proper heart monitoring, sanitary ...


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