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Viverette v. Wexford Health Sources Inc.

United States District Court, S.D. Illinois

July 23, 2018




         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 42) of Magistrate Judge Donald G. Wilkerson recommending that the Court deny the motion for summary judgment filed by defendants Christine Brooks and Travis James seeking dismissal for failure to exhaust administrative remedies (Doc. 26). Brooks and James have objected to the Report (Doc. 43).

         I. Report Review Standard

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         II. Report

         After holding a videoconference hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), [1] Magistrate Judge Wilkerson found in the Report that plaintiff Jimmy Vivarette, an inmate of Lawrence Correctional Center (“Lawrence CC”) at all times relevant to this case, had exhausted all administrative remedies available to him before filing this lawsuit as required by 42 U.S.C. § 1997e(a). Magistrate Judge Wilkerson came to this conclusion even though Vivarette did not file a grievance until more than 60 days after discovering the problem he was grieving as required by 20 Ill. Admin. Code § 504.810(a) (2015).

         The facts Magistrate Judge Wilkerson set forth regarding Vivarette's injury are not seriously disputed. Vivarette was injured on December 21, 2014, and was treated by Brooks and James, medical personnel at Lawrence CC, shortly thereafter. They did not recognize that Vivarette had torn his Achilles tendon, which was first diagnosed by Dr. Coe on March 30, 2015. Vivarette filed an emergency grievance with the Lawrence CC warden, the chief administrative officer, on June 13, 2015, complaining of the treatment he received from Brooks and James. Five days later the warden found the grievance did not present an emergency situation, returned it to Vivarette, and directed him to file a grievance in the normal, non-emergency manner. Vivarette did not immediately appeal the warden's decision to the Administrative Review Board (“ARB”). Instead, he submitted the grievance to his counselor, who responded on August 7, 2015, and then to the ARB, which received it on September 14, 2015. The ARB directed Vivarette to submit the grievance officer's and warden's responses. Vivarette filed this lawsuit in June 2017.

         Magistrate Judge Wilkerson found that Vivarette was credible when he testified that he did not realize Brooks and James had treated him incorrectly until Dr. Coe diagnosed him with a torn Achilles tendon on March 20, 2015, and that he further delayed filing a grievance because he did not know about the grievance process, having never gone through orientation at Lawrence CC, until another inmate told him about it. Thus, he was excused from not grieving his problem within 60 days. Citing the non-precedential decision of Bentz v. Ghosh, 718 Fed.Appx. 413 (7th Cir. 2017), Magistrate Judge Wilkerson further found that once Vivarette had submitted his emergency grievance, he was not required to do anything further and had exhausted his administrative remedies.

         III. Objection and Analysis

         Brooks and James object on a number of grounds. First, they challenge Magistrate Judge Wilkerson's decision to believe Vivarette when he stated he had never been informed of the grievance procedure until it was explained to him by another inmate within the 60 days before his emergency grievance. They point to documents they claim show Vivarette was informed of the grievance procedure in April 2013, when he arrived at Lawrence CC (a cumulative counseling summary for Vivarette stating that he received the handbook during orientation and two later versions of the handbook), his failure to take opportunities to ask his counselor for assistance, and his failure to mention in his complaint a prior lawsuit involving the same facts. None of these factors cause the Court to question Magistrate Judge Wilkerson's credibility determination. There was no testimony about the meaning or reliability of the cumulative counseling summary, and neither of the handbooks provided as exhibits existed in April 2013 when Vivarette supposedly went through orientation. Even the handbooks provided do not explain the emergency grievance process. Vivarette had no obligation to ask his counselor for help outside the grievance process, and Vivarette could reasonably misconstrue his prior lawsuit about the same problems in this case as the same lawsuit. The defendants have not given the Court any compelling reason not to defer to Magistrate Judge Wilkerson's credibility determination.

         The defendants further argue Magistrate Judge Wilkerson erred in the legal conclusion that Vivarette was not obligated under the Illinois Administrative Code to appeal the warden's decision that Vivarette's grievance did not present an emergency. Indeed, Magistrate Judge Wilkerson relied on Bentz v. Ghosh, 718 Fed.Appx. 413 (7th Cir. 2017), in which an Illinois inmate filed suit after the warden had found his grievance not to be an emergency but before the ARB had ruled on his appeal of that decision. Id. at 416. The Court of Appeals held that the inmate was not required to refile his rejected emergency grievance using the non-emergency grievance procedure, see Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005), and that, “Under these circumstances Illinois rules do not require him to appeal that decision to the Administrative Review Board.” Bentz, 718 Fed.Appx. at 418.

         It is hard to say why the Bentz court came to the conclusion that no appeal of the emergency status decision was required because it did not explain its reasoning. However, the following discussion sets forth a plausible path to that conclusion, one which the Court finds persuasive. The path starts from the principle that it is the warden's “response” that makes an appeal available:

If, after receiving the response of the Chief Administrative Officer, the offender still feels that the problem, complaint or grievance has not been resolved to his or her satisfaction, he or she may appeal in writing to the Director within 30 days after the date of the decision.

20 Ill. Admin. Code § 504.850(a) (2015) (emphasis added). It appears the Bentz court took a narrow view of the meaning of “the response of the Chief Administrative Officer.” Under its view, the “response” would include the content of the box on the “Response to Offender's Grievance” form (DOC 0047) labeled “Chief Administrative Officer's Response, ” where the warden's response to the substance of the grievance is usually found.[2] However, the Bentz court apparently did not consider the “response” to include a decision that the grievance is not an emergency, which is recorded in the box labeled “EMERGENCY REVIEW” on the Offender's Grievance form (DOC 0046). See Offender's Grievance (Doc. 27-1 at 5). Thus, under Bentz, until an inmate receives a substantive ...

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