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Watford v. Kirk

United States District Court, S.D. Illinois

September 5, 2019

MARLON WATFORD, Plaintiff,
v.
SUSAN KIRK, Defendant.

          REPORT & RECOMMENDATION

          GILBERT C. SISON United States Magistrate Judge.

         Plaintiff Marlon L. Watford alleges that Defendant Susan Kirk was deliberately indifferent to his medical needs by failing to treat adequately intestinal symptoms he experienced in March 2015 and June 2016. Before the Court is Kirk's motion for summary judgment on the issue of exhaustion (Doc. 42).[1] The matter has been referred to the undersigned by District Judge Staci M. Yandle pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). For the reasons delineated below, it is RECOMMENDED that the Court grant Defendant Kirk's motion for summary judgment.

         I. Findings of Fact

         According to an April 5, 2015 grievance, Watford experienced severe stomach pain and IBS symptoms on March 18, 2015, which he complained were due to a severe case of H. Pylori. Officer Hess escorted him to the healthcare unit where he saw a nurse. According to the grievance, an unnamed nurse told him that a test of H. Pylori was negative, but Watford told her the test was wrong. Watford alleged that the nurse refused to let him see the doctor without paying a $5 co-payment. Watford further alleged that he left the healthcare unit without seeing the doctor because the nurse would not bother the doctor while he was eating his lunch. The grievance went on to raise complaints against other individuals at later dates and to request an endoscopy, an ulcerative colitis test, an IBS breath test and the reimbursement of the $5 co-payment.

         More than one year later, on June 16, 2016, Watford again consulted healthcare staff regarding his stomach issues. He saw Defendant Susan Kirk, a nurse, and told her that he had recurring stomach pain and burning. Watford also indicated that he had stomach and bowel spasms and had begun to have blood in his stool. He requested a referral to Dr. Trost, but he did not receive one.

         The April 5, 2015 grievance that Marlon attached to his complaint shows that the emergency grievance box is checked. On April 23, 2015, the Chief Administrator Officer signed the emergency review section of Watford's grievance and found that the grievance was not an emergency and should be submitted in the normal manner. Watford did not appeal the grievance to the Administrative Review Board. Watford denies checking the emergency grievance box and claims the prison officials made the system unavailable to him by checking the box for him. He also posits that Defendant Kirk is not named in any grievance because of actions she took on June 16, 2016, and later that were deceptive, which led Watford to believe she would schedule him to see Dr. Trost. While Watford filed other grievances and appeals between June 2016 and the date in 2018 when he filed this action, none of the grievances or appeals related to Defendant Kirk or the claims in this action.

         II. Legal Standards

         Summary judgment is “proper if the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact such that [Defendants are] entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467 (7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(a). That statute states, in pertinent part, that “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.” Id. (emphasis added).

         Generally, the Court's role on summary judgment is not to evaluate the weight of the evidence, to judge witness credibility or to determine the truth of the matter. Instead, the Court is to determine whether a genuine issue of triable fact exists. See Nat'l Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In Pavey, however, the Seventh Circuit held that “debatable factual issues relating to the defense of failure to exhaust administrative remedies” are not required to be decided by a jury but are to be determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-741 (7th Cir. 2008). Here, the question of exhaustion is a purely legal question, and no hearing is required.

         The Seventh Circuit requires strict adherence to the PLRA's exhaustion requirement. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)(noting that “[t]his circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur before the suit is filed. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending. Id. Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to use a prison's grievance process properly, “the prison administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.

         Under Pavey, the Seventh Circuit held that debatable factual issues relating to the defense of failure to exhaust administrative remedies are not required to be decided by a jury but are to be determined by the judge. See Pavey, 544 F.3d at 741. Thus, where failure to exhaust administrative remedies is raised as an affirmative defense, the Court set forth the following procedures:

(1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, the judge will then determine whether (a) the plaintiff has failed to exhaust his administrative remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted administrative remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), and so he must be given another chance to exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's not just being given a runaround); or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.

Id. at 742.

         As an inmate confined within the Illinois Department of Corrections, Watford was required to follow the regulations contained in the Illinois Department of Correction's Grievance Procedures for Offenders (“grievance procedures”) to exhaust his claims properly. See 20 ILL. Admin. Code §504.800, et seq. The grievance procedures first require inmates to file their grievance with the counselor ...


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