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 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.
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.
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.
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.
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.
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.
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.
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 while he was housed at Robinson CC and for
which he did receive a grievance officer's
response. However, when he sent that grievance to
the ARB in May 2017, he did not receive a response from the
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.
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, 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
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
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 ...