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Smado v. Rice

United States District Court, S.D. Illinois

July 6, 2018

SCOTT SMADO, Plaintiff,
v.
DEREK RICE, TRAVIS JAMES, and JAKE BROOKHART, 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 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 that the Motion for Summary Judgment based on Exhaustion filed by Defendant Travis James on March 6, 2018 (Doc. 36) be DENIED, that the Motion for Summary Judgment filed by Defendant Jake Brookhart on March 19, 2018 (Doc. 43) be DENIED and that the Court adopt the following findings of fact and conclusions of law.

         Introduction

         On July 31, 2017, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 related to a medical condition that developed on January 28, 2017 while he was incarcerated at the Robinson Correctional Center. This condition turned out to be a number of ulcers that had ruptured simultaneously, causing internal bleeding that required emergency treatment. During the time period of January 28, 2017 to February 27, 2017, Plaintiff alleges that Defendants Rice and James, who are medical personnel, were deliberately indifferent to his medical needs when he sought help from them (Counts 1 and 3). Plaintiff further claims that Defendant Brookhart, an internal affairs officer, threatened him with retaliation on April 10, 2017 if he filed a lawsuit about these events.

         Only Defendants James and Brookhart seek summary judgment on the issue of whether Plaintiff exhausted his administrative remedies. A hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), was held on April 26, 2018 in which Plaintiff appeared by video-conference and Defendants appeared by counsel.

         Findings of Fact

         The parties agree that Plaintiff filed grievances on February 23, 2017 and March 24, 2017 related to his medical care and potentially related to Defendant James. It should be noted that Plaintiff's only claim against Defendant James is for an event on February 23, 2017. While Plaintiff never was treated by James, he claims that James should have treated him that evening instead of merely referring him to the doctor the following Monday, February 27, 2017.[1]

         In a February 23, 2017 grievance, Plaintiff described the events of that day and the persons involved (Doc. 37-1, pp. 157, 171-173): He stated that he asked C/O Kocher to contact the Healthcare Unit (HCU) because he had blood in his stool. While Nurse Stephens told him to come the next day, when the doctor would be in, she previously told Plaintiff to go to the HCU if he had blood in his stool. Therefore, he went to the HCU with a stool sample and Nurse Stephens again said there was nothing that she could do that day. Later that day, Plaintiff went back to the HCU and told Nurse Cummings of his recent stomach infection - she directed him to provide stool samples for the next three days. There is no mention of Defendant James in this grievance.

         The grievance officer responded on March 10, 2017 and the Warden concurred with denying the grievance on the same day. Plaintiff appealed this grievance to the Administrative Review Board (ARB) on March 30, 2017 which upheld the prisons decision on May 2, 2017.

         Plaintiff provided another grievance dated February 23, 2017 but signed on September 29, 2017 which contains no institutional response but which was received by the ARB on October 10, 2017 (Doc. 47, p. 7). In this grievance, Plaintiff stated that “Nurse Cummings told P.A. James about my situation and left P.A. James a note to see me that night. PA James left a note stating he will let Dr. Shah deal with me on Monday.” Plaintiff requested that his medical needs be addressed. In responding to this grievance, on October 17, 2017, that ARB indicated that it was untimely (Doc. 47, p. 6).

         At the hearing, Plaintiff stated that this grievance was drafted on September 29, 2017 when he was housed at the East Moline Correctional Center. He further relayed that the grievance was a reproduction of one that he had submitted on February 23, 2017[2] while he was housed at Robinson CC and for which he did receive a grievance officer's response.[3] However, when he sent that grievance to the ARB in May 2017, he did not receive a response from the ARB.[4] He also did not copy the grievance prior to submitting it to the ARB. The Court finds Plaintiff credible in his statement that he submitted the grievance with the grievance officer's and Warden's response to the ARB but that it was not responded to by the ARB.

         On March 24, 2017, Plaintiff submitted three grievances in which he complained that various administrative and high level personnel failed to ensure that he received adequate medical care from the HCU. The first grievance refers to Warden Rains, the second to HCU Administrator Phil Martin, and the third is about Director of Nursing Slichenmeyer (Doc. 37-1, pp. 143-148). While the grievances mention previous encounters with the HCU and other grievances[5], Plaintiff does not name any person other than these three individuals. Plaintiff's counselor responded to all three grievances on April 6, 2017. The grievance officer responded to all three grievances on May 1, 2017 and Plaintiff appealed to the ARB which received the grievances on May 30, 2017 (Doc. 37-1, p. 142). The ARB responded on July 7, 2017 that Plaintiff's medical concerns were addressed in prior responses and that his grievances were untimely. There do not appear to be any other grievances related to the care Plaintiff received (or didn't receive) from Defendant James.

         As indicated above, Plaintiff claims that Defendant Brookhart threatened him around April 10, 2017. The parties agree that Plaintiff submitted a 4 page grievance, that he dated June 3, 2017, in which he complained that Defendant Brookhart told him that he was filing too many grievances about the incident on January 28, 2017 (Doc. 50, pp. 18-21). The counselor received the grievance on June 19, 2017 and responded on June 27, 2017. The response did not indicate that the grievance was untimely. There is no grievance officer's or Warden's response. Plaintiff stated that upon receiving the counselor's response, he sent the grievance to “Springfield.” The ARB received it on October 6, 2017 (Doc. 50, p. 17). The grievance was rejected as untimely.

         The Court finds Plaintiff credible in his testimony concerning the grievances set forth above based on his demeanor and the seeming truthfulness of his statements. In particular, the Court finds that Plaintiff did timely submit a grievance about PA James but that he received no response from the ARB. The Court further finds that the only grievance related to Defendant Brookhart was submitted on June 3, 2017 but that Plaintiff did not send the grievance to the grievance officer and instead sent it to the ARB. Plaintiff indicated at the hearing that he did ...


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