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Viverette v. Brooks

United States District Court, S.D. Illinois

June 15, 2018

JIMMY VIVERETTE, Plaintiff,
v.
CHRISTINE BROOKS and TRAVIS JAMES, Defendants.

          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 J. Phil Gilbert 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 that the Motion for Summary Judgment filed by Defendants, Christine Brooks and Travis James, on February 9, 2018 (Doc. 26) be DENIED and that the Court adopt the following findings of fact and conclusions of law.

         Introduction

         Plaintiff, Jimmy Viverette, an inmate incarcerated at the Lawrence Correctional Center, filed a complaint on June 2, 2017 pursuant to 42 U.S.C. § 1983 (Doc. 1). He alleges that Defendants Christine Brooks and Travis James were deliberately indifferent to an injury he suffered on December 21, 2014 that caused a partial tear to his Achilles tendon. He specifically claims that Nurse Brooks failed to provide adequate care when he saw her immediately after the injury. He further claims that Physician Assistant (PA) James failed to adequately treat him when he was later examined on January 24, 2015. In an Order entered pursuant to 28 U.S.C. § 1915A, Plaintiff was permitted to proceed on an Eighth Amendment claim of deliberate indifference against both Defendants (Count 1) (Doc. 8). Defendants now seek summary judgment on the affirmative defense of failure to exhaust administrative remedies (Doc. 26). Plaintiff responded to the motion on March 22, 2018 (Doc. 33) to which Defendants replied (Doc. 34). In accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), a hearing on the motion was held on April 3, 2018 in which Defendants appeared by counsel and Plaintiff appeared by video-conference.

         Findings of Fact

         On June 13, 2015, Plaintiff submitted an emergency grievance in which he stated that he was injured on December 21, 2014 when he heard a popping sound at the back of his leg while he was playing basketball (Doc. 27-1, p. 5). He told a guard that he could not walk and Nurse Brooks was summoned with a wheelchair (Id.). When he told Nurse Brooks what he heard and how he felt, she said he probably had just torn a muscle and she gave him an Ace wrap, Motrin, and told him to walk back to his cell (because the injury would heal if he kept walking) (Id.). He then sent in a request for medical care on January 25, 2015 and was seen by Defendant James on January 27th (Id. 6). James gave him similar (conservative) treatment and followed up two weeks later (Id.). It was at that later visit that James referred Plaintiff to Dr. Coe who examined him on March 30, 2015 (Id.). At this examination, Plaintiff was told that he might have torn his Achilles tendon (Id.). Plaintiff goes on to discuss the treatment provided for the tear to his Achilles tendon (Id.). He concludes by stating that the nursing staff should be better trained on how to deal with medical emergencies (Id.).

         The Warden responded on June 18, 2015 that the matter was not an emergency and the form directed Plaintiff to submit the grievance in the “normal manner” (Id. 5). Plaintiff submitted the grievance to his counselor who responded on August 7, 2015 (Id.). He then sent the grievance directly to the Administrative Review Board (ARB) which received it on September 14, 2015 (Id. 2). The ARB directed Plaintiff to provide a copy of the grievance officer's response, “if timely” (Id.). There are no other grievances in the record related to the claims in this case.

         At the hearing, Plaintiff testified that he waited until June 13, 2015 to file a grievance because he believed that Brooks and James diagnosed him or treated him adequately. He found out he was misdiagnosed on March 30, 2015, when he saw Dr. Coe. But, he still didn't file a grievance because he didn't know about the grievance process. He testified that even though he had been at Lawrence CC since 2013, he never receive an orientation and did not know what a grievance was. He didn't find out about the process until he was moved to “5 house” and spoke to another prisoner who informed him about the grievance process and helped him fill out a grievance. At first Plaintiff indicated that he moved to 5 house a couple of weeks after his injury, in January 2015. He then indicated that he moved to a downstairs cell in the 5 house after a boot was placed on his leg after he saw Dr. Coe on March 30, 2015. It was at that time that he was informed of the grievance process by another inmate. Plaintiff indicated that when he filled out the grievance and sent it to his counselor, his counselor returned it to him and told him to write “level 2.” He followed those instruction and sent it back to his counselor and then on to Springfield, Illinois (i.e. to the ARB).

         It may appear unusual for an inmate to not know about the grievance process after having been incarcerated for over a year. Nonetheless, the Court finds Plaintiff credible in his statement that he didn't know about the grievance process until after he was seen by Dr. Coe and moved to the downstairs half of the 5 house. There is no record that Plaintiff filed a grievance before the June 15, 2015 grievance nor is there any evidence that anyone at the prison informed Plaintiff of the grievance process. While Plaintiff did not remember exactly on what days these events happened, his demeanor and attitude at the hearing demonstrated that he was being truthful. To the extent that the grievance, Plaintiff's testimony, or his Complaint may appear inconsistent, such inconsistencies are most likely the result of the help that Plaintiff received from other inmates.

         Conclusions of Law

         Summary judgment is proper only if the moving party can demonstrate “that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party “has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. The Seventh Circuit has stated that summary judgment is “the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).

         The Prison Litigation Reform Act 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 administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-535 (7th Cir. 1999) (stating that §1997e(a) of the PLRA “makes exhaustion a precondition to bringing suit” under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme Court has interpreted the PLRA to require “proper exhaustion” prior to filing suit. SeeWoodford v. Ngo, 548 U.S. 81, 84 (2006). This means “using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to “file complaints and appeals in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025. In Pavey, the Seventh Circuit ...


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