United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
(“Report”) of United States Magistrate Judge
Reona J. Daly (Doc. 75), recommending that Dr. Vipin
Shah's Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies (Doc. 43) be granted. Plaintiff Kent
Stubbs filed a timely objection to the Report (Doc. 77). For
the following reasons, Judge Daly's Report is
filed suit on February 15, 2018 pursuant to 42 U.S.C. §
1983, claiming Defendants were deliberately indifferent to
his medical needs and failed to accommodate those needs
(Docs. 1, 11). He alleges that on April 10, 2017, while
housed at the Lawrence Correctional Center, he fell from his
top bunk and suffered a debilitating back injury that was not
treated appropriately. He claims that although he received
some medical treatment for his injuries, he was given no
assistance to eat, drink, and perform self-care for many
days. He also alleges that for months, he was denied pain
medication, a referral to a specialist, appropriate physical
therapy, and various medical devices and permits.
submitted numerous emergency grievances and copies of those
grievances to prison authorities in May and June 2017: A May
7, 2017 grievance discussed the fall on April 10, 2017 and
the lack of safety features on the bunks; a May 8, 2017
grievance discussed his placement in a handicap accessible
cell by Dr. Shah with no assistant to help him move, get
food, or use the toilet; another May 8, 2017 grievance again
discussed the fall and injury and stated that the medication
he received was not working. The prison warden responded to
each of these emergency grievances within 10-11 days and
found that they were not emergencies. Before receiving
responses from the warden, Stubbs submitted the grievances to
the Administrative Review Board (“ARB”), which
told him to submit the grievances in the normal manner.
Stubbs attempted to do so, but the grievances were rejected
as untimely by his counselor, the grievance officer, the
warden, and the ARB.
submitted identical grievances on June 4 and 7, 2017, which
stated that Dr. Shah had prescribed a pain medication that
didn't work, that he then prescribed medication that
helped a little, but that Dr. Ahmed discontinued that
medication. It is undisputed that the June 7, 2017 grievance
was fully exhausted.
also submitted two grievances in October 2017 related to the
lack of medical care; only one of which - the October 23,
2017 grievance - was fully exhausted. Both grievances
discussed the lack of medical care and named various health
personnel. However, neither grievance mentioned Dr. Shah.
Shah moved for summary judgment, arguing that Stubbs failed
to exhaust administrative remedies prior to filing suit (Doc.
43). Stubbs filed a response (Doc. 49).
Judge Daly held a hearing pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008) on August 7, 2019
and subsequently issued her Report setting forth the evidence
presented by the parties, the applicable law, the
requirements of the administrative process, and her
conclusions. Judge Daly concluded that Stubbs failed to fully
exhaust the grievances submitted on May 7, May 8 and October
18, 2017. She further concluded that while Stubbs did fully
exhaust the June 7 and October 23, 2017 grievances, they did
not alert the prison of his complaints against Dr. Shah. As a
result, Judge Daly recommends that Dr. Shah's Motion be
granted and that Stubbs' claims against him be dismissed
without prejudice for failure to exhaust administrative
Stubbs filed an objection, the undersigned will undertake a
de novo review of the Report as to those defendants.
28 U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b);
SDIL-LR 73.1(b); see also Govas v. Chalmers, 965
F.2d 298, 301 (7th Cir. 1992). De novo review
requires the Court to “give fresh consideration to
those issues to which specific objections have been
made” and to make a decision “based on an
independent review of the evidence and arguments without
giving any presumptive weight to the magistrate judge's
conclusion.” Mendez v. Republic Bank, 725 F.3d
651, 661 (7th Cir. 2013). The Court “may accept, reject
or modify the magistrate judge's recommended
objection, Stubbs argues that Judge Daly erred in finding he
did not fully exhaust the May 2017 grievances and the October
18, 2017 grievance. He acknowledges however, that only the
grievance identified as “E398” and submitted on
May 8, 2017 concerned Dr. Shah. As such, Stubbs has conceded
that is the only grievance related to his deliberate
indifference claim against Dr. Shah. The grievance stated
that after April 12, 2017, Dr. Shah placed Stubbs in a
handicap accessible cell with no assistance even though he
was unable to care for himself (Doc. 77, pp. 16-18). The
grievance also stated that Stubbs subsequently injured
himself while trying to get water and was not able to move or
go to the dining hall for meals, that he was prone for at
least 16 hours and urinated on himself 3 times, and that he
suffered significant back pain.
Prison Litigation Reform Act requires prisoners to exhaust
all available administrative remedies before filing suit. 42
U.S.C. § 1997e(a). Proper exhaustion requires that
inmates file complaints and appeals in the place, at the
time, and in the manner the prison's administrative rules
require. Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002). Applicable regulations required Stubbs to
submit his grievance in the normal manner once the Warden
determined that the grievance was not an emergency. 20
Ill.Comp.Stat. § 504.840(c). The regulations also
required that normal grievances must be submitted
“within 60 days after the discovery of the incident,
occurrence or problem that give rise to the grievance.”
Id. § 504.810(a). An inmate forfeits the
grievance process when he causes the unavailability of a
remedy by not timely filing or appealing a grievance.
Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
does not dispute Judge Daly's description of how and when
he submitted the May 8, 2017 grievance for consideration. The
grievance was submitted as an emergency to the warden on May
8, 2017. On May 18, 2017 the warden determined that the
grievance was not an emergency and directed Stubbs to
“submit the grievance in the normal manner.”
Instead of submitting the grievance in the normal manner,
i.e. to his counselor, Stubbs mailed the grievance to the
ARB. On July 6, 2017, the ARB returned the grievance to
Stubbs because it did not contain institutional responses
from his counselor, the grievance officer and the warden.
Thereafter, Stubbs submitted the grievance to his counselor.
By this time, approximately 117 days had ...