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Reed v. Larson

United States District Court, S.D. Illinois

September 26, 2019

RECO REED, Plaintiff,
v.
DENNIS LARSON, and WEXFORD HEALTH SOURCES, INC., Defendants.

          REPORT & RECOMMENDATION

          GILBERT C. SISON UNITED STATES MAGISTRATE JUDGE

         On June 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.

         I. Factual Background

         Reed, 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).

         At 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).

         A 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).

         The 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.

         Reed 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).

         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 questions before the Court are purely legal and no hearing is necessary.

         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.

         In 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 ...

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