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Bentz v. McGlorn

United States District Court, S.D. Illinois

September 3, 2019

DAVID ROBERT BENTZ, Plaintiff,
v.
SHARON MCGLORN, et al., Defendants.

          REPORT AND RECOMMENDATION

          Hon. Reona J. Daly, United States Magistrate Judge.

         This matter has been referred to United States Magistrate Judge Reona J. Daly 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. § 1997(e)(a). Based on the following, it is RECOMMENDED that the Motion for Summary Judgment for Plaintiff's Failure to Exhaust Administrative Remedies (Doc. 90) be GRANTED IN PART.

         Findings of Fact

         Plaintiff David Bentz, an inmate in the custody of the Illinois Department of Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated while he was incarcerated at Menard Correctional Center (“Menard”). On May 24, 2018, Plaintiff filed an Amended Complaint (Doc. 24). Plaintiff alleges he was the victim of a staff assault on May 11, 2014, from which he sustained injuries to his neck area. These injuries caused him chronic pain, jaw pain, swelling to his left shoulder, neck, and head areas, vision issues in his left eye due to swelling and pressure, rotation issues with his neck and head due to chronic swelling, and occasional leg pain. Following threshold review, Plaintiff proceeds on the following counts:

Count 1: Eighth Amendment deliberate indifference to medical needs claim against Defendants Trost, Monjie, McGlorn, Jane Does Nurse 1, 2, and 15, Threadgill, Lang, Kirk, John/Jane Doe Medical Staff 3, Waller, Little, Westfall, John Doe Sgt. 16, Skidmore, Mears, Moldenhauer, Marshall, John/Jane Doe Medical Staff 7, Shah, Hawkins, Siddiqui, Lafone, Pollion, and Wexford for failing to adequately address the injuries that Plaintiff sustained on May 11, 2014 and the chronic pain he continues to experience.
Count 3: First Amendment retaliation claim against Mears and Lang for refusing to provide Plaintiff with medical care in retaliation for his filing lawsuits.

         Defendants Wexford, Moldenhauer, Siddiqui, Trost, McGlorn, and Pollion filed a motion for summary judgment asserting Plaintiff failed to properly exhaust his administrative remedies prior to filing this lawsuit. Plaintiff failed to timely respond to the Motion. Pursuant to Local Rule 7.1(c), the Court considers Plaintiff's failure to respond an admission of the merits of the motion.

         Plaintiff filed numerous grievances and appeals during the relevant time period. The Court reviews the following relevant medical grievances contained in the record:

         October 2, 2014, #60-10-14 (Doc. 91-1 at 62-66): Plaintiff submitted this grievance as an emergency. Plaintiff claims C/O Lindenberg and C/O Smith assaulted him on August 29, 2014, and that despite submitting medical request slips, he was denied medical call passes. Plaintiff states he suffered injuries to his neck, chest area, and the right side of his head. Plaintiff grieves that he has continually been denied medical call passes. The grievance does not specifically name or describe actions of any medical staff. The relief requested was that he (1) receive adequate medical care; (2) C/Os Lindenberg and Smith be held accountable for their actions; and (3) Lindenberg be criminally charged for assault and battery.

         Plaintiff's grievance was deemed an emergency by the CAO on October 8, 2014. On October 10, 2014, the Grievance Officer contacted the Health Care Unit and Internal Affairs. IA investigated and found the claim was unsubstantiated. HCU responded as follows, “I received your grievance on 10-10-14. I have reviewed your medical record. You reported that you were assaulted on 5-11-14 during line movement. You complained of lt. neck, jaw, side pain. The nurse notes all within normal limits. You were scheduled to see the MD on 8-29-14 but [were] in an altercation before you were seen. You were seen on 10-3-14 by the MD. He noted mild tenderness of the neck and your neck was supple. He ordered Motrin and X-ray of C-Spine. X-ray was done on 10-10-14, no obvious fractures found. You are to be followed up in 2 wks. Request NSC as needed.” The Grievance Officer's Report recommended the grievance be denied. On October 24, 2014, the CAO concurred. Plaintiff appealed and on December 2, 2014, the ARB denied the grievance finding the issues were appropriately addressed by the facility Administration.

         Defendants assert this grievance is insufficient to exhaust the claims against them because it does not name or describe Wexford, Moldenhauer, McGlorn, Trost, Siddiqui, or Pollion, or their alleged actions at issue in this case.

         June 15, 2016, #101-6-16 (Doc. 91-1 at 58-61): Plaintiff states that on June 9, 2016, he was seen in the health care clinic by Physician Assistant S. McGlorn and requested pain medication for his neck injury. Plaintiff grieves that he was prescribed 875 mg of Naproxen by McGlorn, but that he only received 750 mg of Naproxen. Plaintiff also asserts he had previously been prescribed 850 mg of Naproxen by Trost and only ever received 750 mg. Plaintiff requested that he receive his 875 mg prescription of Naproxen and a follow-up visit with Trost. Plaintiff also requested the identity of the person responsible for filling prescriptions.

         On June 16, 2016, the Counselor responded attaching a Memorandum from the Health Care Unit Administrator that set forth the dates Plaintiff had received his Naproxen. On June 29, 2016, the Grievance Officer contacted the Pharmacy and confirmed Plaintiff was receiving his Naproxen prescription. The Grievance Officer recommended the grievance be found moot. On July 7, 2016, the CAO concurred. Plaintiff appealed the grievance but the ARB received the grievance more than 30 days from the CAO's denial and did not issue a determination on the merits.

         Defendants assert this grievance is insufficient to exhaust the claims against them because Plaintiff failed to timely appeal and did not follow the proper steps to fully exhaust his administrative remedies.

         June 30, 2016, #12-8-16 (Doc. 91-1 at 54-57): Plaintiff asserts he was assaulted by Lt. Hoppenstedt on June 27, 2016, and subsequently denied medical care. He states he had bruising and injuries to his right elbow, head, left shoulder, and back right side of his neck. Plaintiff claims he submitted multiple requests to the health care box to no avail. Plaintiff does not name or describe medical personnel in the grievance. The relief requested by Plaintiff was that he be seen by a doctor for pain medication and x-rays of his neck; that he be interviewed by IA and have pictures of his injuries taken; that Lt. Hoppenstedt be criminally prosecuted and terminated without benefits; and that John Does be identified.

         On July 12, 2016, the Counselor responded to Plaintiff's grievance stating that she contacted staff and was unable to verify the allegations. The Grievance Officer contacted the Health Care Unit Administer who advised Plaintiff was seen on July 1, 2016 for shoulder/neck pain and given ibuprofen and that no sick call requests had been received since that date. The Report recommended Plaintiff's grievance be denied. On August 9, 2016, the CAO concurred. Plaintiff appealed the ...


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