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 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.
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.
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.).
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.
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
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.
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
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 ...