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Reed v. Larson

United States District Court, S.D. Illinois

December 12, 2019

RECO REED, Plaintiff,



         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 60) of Magistrate Judge Gilbert C. Sison recommending that the Court grant in part and deny in part defendant Dr. Dennis Larson's motion for summary judgment (Doc. 39), joined by defendant Wexford Health Sources, Inc. (“Wexford”) (Doc. 59), on the grounds that plaintiff Reco Reed failed to exhaust his administrative remedies. All parties have objected to the Report (Docs. 61 & 62).

         I. Report Review Standard

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         II. Analysis

         This matter arose after Reed began suffering pain from an inguinal hernia in March 2017. He was still suffering when he was transferred to the Big Muddy Correctional Center (“Big Muddy”) in July 2017. The Illinois Department of Corrections contracts with Wexford to provide health services to inmates at Big Muddy.

         In November and December 2017, Reed sought treatment from Big Muddy's health care unit where a nurse told him to push his hernia back into place (called a “reduction”), to buy pain medication from the commissary, and that he would need surgery to fix it permanently. Although Reed suffered serious pain, he was not scheduled to see a doctor until January 3, 2018, when he first saw Dr. Larson. Dr. Larson did not prescribe any medication and told Reed to follow up with him in ninety days. Reed believes that Wexford, Dr. Larson's employer, had a policy of not approving hernia surgery unless and until the hernia became strangulated or incarcerated (unable to be reduced and risking necrosis and infection) even where lesser treatment was ineffective to treat pain. He asserts that Dr. Larson refused to order surgery simply because he knew that Wexford would not approve it. After months of suffering, Reed finally received surgery in September 2018, but suffered permanent complications from the surgery.

         In the Report, Magistrate Judge Sison noted that Reed filed three grievances concerning the matter, dated November 25, December 25, and December 31, 2017, respectively. He found that Reed exhausted his administrative remedies in the normal manner with respect to the November 25 grievance, but not the other two. He further found that additional remedies were not available for the December 25 emergency grievance because the chief administrative officer took eight days to decide whether the grievance was actually an emergency, so the failure to exhaust that grievance was excused. Magistrate Judge Sison concluded that Reed had not exhausted administrative remedies for his claims against Larson because all his grievance predated Dr. Larson's involvement in his care, . He further concluded that the November 25 and December 25 grievances complaining generally of the medical care provided for his hernia sufficiently exhausted his policy and practice claims against Wexford.

         A. Dr. Larson

         Reed objects to Magistrate Judge Sison's finding that he failed to exhaust his remedies for his claims against Dr. Larson. While Reed admits he did not refer to Dr. Larson in his grievances, he argues that under the “continuing violation” theory, he only needed to file single grievance about his hernia treatment in order to exhaust his remedies against any subsequent treaters involved in that course of treatment.

         The Court of Appeals for the Seventh Circuit has accepted the “continuing violation” theory to avoid redundant grievances. The continuing violation theory, created in the statute of limitations context, views a series of failures to treat a medical condition as a single wrong that ends, for limitations purposes, when treatment is provided or the inmate is released. Jervis v. Mitcheff, 258 Fed. App'x 3, 5-6 (7th Cir. 2007). The theory allows a delay in the accrual of a cause of action until the date of the inmate's last injury. Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001). It allows a plaintiff to reach back for damages to the beginning of an injury “even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant's unlawful conduct.” Id. It does not, however, allow a plaintiff to reach back to before a particular defendant became aware of the inmate's problem-and thus potentially indifferent to them-until later. Id. at 318.

         The Court of Appeals for the Seventh Circuit has applied this theory to relieve an inmate of the requirement to file a grievance about each instance in a defendant's series of the same continuing wrongs. “In order to exhaust their remedies, prisoners need not file multiple, successive grievances raising the same issue (such as prison conditions or policies) if the objectionable condition is continuing.” Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). In Turley, the theory was applied to the systemic application of a prison lockdown policy that occurred both before and after a grievance about the policy. Id. The Court of Appeals viewed application of the policy as a continuing violation that permitted a later-filed grievance to reach back to earlier lockdowns under the same policy. Id. It noted that “[s]eparate complaints about particular incidents are only required if the underlying facts or the complaints are different.” Id.

         The Court of Appeals for the Seventh Circuit recently declined to apply the theory in Barrow v. Wexford Health Sources, Inc., No. 18-1929, 2019 WL 5681378 (7th Cir. Nov. 1, 2019). That case involved an inmate's complaints about the treatment he received by prison medical personnel for an extended eye condition that he believed required surgery. Id. at *1. When the prison's medical director recommended delaying the surgery, and the other medical reviewers agreed, the inmate filed two grievances over the delay. Id. Eight months after the second grievance, a new medical director took over at the prison, and the inmate had the surgery seven months later. Id. The inmate sued the new medical director for deliberate indifference, but the Court of Appeals found that the grievances, which predated the new director's arrival at the prison, did not exhaust the inmate's remedies against him because the inmate did not name him in any grievance. Id. at *2. The Court noted that since the grievances were filed before the new medical director's arrival on the scene, they could not possibly have grieved his conduct. Id. The Court acknowledged Turley's continuing violation theory, but distinguished Turley because it involved a systemic practice in the prison rather than specific conduct by a defendant. Id.[1]

         The continuing violation does not apply to Reed's case against Dr. Larson. The Illinois grievance rules require an inmate to refer either by name or description to the people involved in the complaint. See 20 Ill. Admin. Code ยง 504.810(c). In his November 25, 2017, grievance, Reed complained that he tried to see the med tech about his hernia and was told he had to pay $5.00. He implied that he had failed to receive treatment not because he refused the treatment itself but instead that he had failed to receive treatment because he refused to pay the $5.00 co-pay. He then asked for damages, in part, for deliberate indifference. Even under a liberal reading of this grievance, Reed does not complain about any medical matter ...

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