United States District Court, S.D. Illinois
REPORT & RECOMMENDATION
GILBERT C. SISON UNITED STATES MAGISTRATE JUDGE
11, 2019, Plaintiff Reco Reed, through appointed counsel,
filed a second amended complaint alleging that Defendants
Dennis Larson and Wexford Health Sources, Inc. were
deliberately indifferent to his serious medical needs by
denying needed care for an inguinal hernia. Before the Court
is a motion for summary judgment on the issue of exhaustion
filed by Defendant Larson (Doc. 39), which Defendant Wexford
Health Sources, Inc. joins. The matter has been referred to
the undersigned by District Judge J. Phil Gilbert pursuant to
28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
Procedure 72(b). For the reasons delineated below, it is
RECOMMENDED that the Court GRANT in
part and DENY in part
Defendants' motion for summary judgment.
an inmate in the Illinois Department of Corrections, was
incarcerated at Centralia Correctional Center in March 2017
when he developed abdominal pain. He was seen by the
healthcare unit and diagnosed with a right inguinal hernia.
He was transferred to Big Muddy River Correctional Center in
July 2017. Reed alleges that as result of Wexford written
policies and widespread customs, he did not receive surgery
necessary to repair his hernia and instead received
less-effective treatment. He also claims that Larson, a
doctor at Big Muddy, was deliberately indifferent by
persisting in a course of treatment known to be ineffective
instead of referring Reed for outside care and surgery. Reed
alleges in his amended complaint that he first saw Dr. Larson
on January 3, 2018. (Doc. 49).
issue between the parties are three grievances. In the first,
dated November 25, 2017, Reed complained that he tried to see
a med-tech on November 22, 2017, about his hernia, which had
started throbbing. He complained about the $5.00 co-pay for
the visit, but he also wrote, “[f]or several months I
am in severe pain and IDOC/Big Muddy has failed to give me
treatment.” (Doc. 40-1, p. 18). He added that
“BMR knows about this problem and continues to do
nothing about it. I am told to go to commissary and buy pain
meds ‘it's cheaper.'” He specifically
mentions seeking relief for deliberate indifference, as well.
(Doc. 40-1, p. 19).
grievance counselor interpreted Reed's grievance as
complaining only about the co-pay in a December 4, 2017
response. (Doc. 40-1, p. 18). A grievance officer recommended
denying the grievance on December 11, 2017, wherein the
officer also focussed on Reed's complaint about the
co-pay. The Chief Administrative Officer (“CAO”)
concurred with the recommendation on December 12, 2017. Reed
timely appealed the decision to the Administrative Review
Board (“ARB”), and the ARB denied the grievance
on January 19, 2018. (Doc. 40-1, p. 16-17).
second grievance at issue was filed on December 25, 2017. In
the grievance, Reed complained that he sneezed and his hernia
went down and caused pain in his testicles. Reed saw a nurse
on December 16, 2017, and the nurse called the doctor. The
doctor advised the nurse to have Reed lay back and
“push it back in, ” which he did, but it slipped
back down. Reed was told he would see the doctor by
Wednesday, but, as of December 25, he had not, nor had he
been given pain medication. Reed marked the grievance as an
emergency. The CAO marked that it was not an emergency on
January 2, 2018.
sent his third grievance, dated December 31, 2017, directly
to the ARB, and the ARB received it on January 8, 2018. The
grievance was nearly identical to his December 25, 2017
grievance. In the grievance, Reed explained that he filed an
emergency grievance about his hernia on December 25, 2017,
and described the same string of events which occurred with
the nurse on December 16. Reed was told he would see a doctor
in a few days, but, as of December 23, he had not, nor had he
been given pain medication. Reed also wrote that Big Muddy
failed to respond to his emergency grievance within 72 hours.
Reed stated the following: “[t]oday is 1-2-17 [sic] and
I still haven't heard back on this grievance nor seen a
doctor.” (Doc. 40-1, p. 21-22). The ARB responded on
January 16, 2018, asking for additional information, namely
the responses from the facility. Th ARB also marked the
grievance as misdirected. (Doc. 40-1, p. 20).
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.
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 questions before the
Court are purely legal and no hearing is necessary.
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.
Pavey, the Seventh Circuit set forth procedures for
a court to follow in a situation where failure to exhaust
administrative remedies is raised as an affirmative defense.
The Seventh Circuit stated the following:
(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 ...