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McIntyree v. Rayburn

United States District Court, S.D. Illinois

December 13, 2019




         This matter is before the Court on a Report and Recommendation of United States Magistrate Judge Reona J. Daly (Doc. 39), which recommends that the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Defendants Paul Hunter, Susan Kirk, Christi Rayburn, and Frank Lawrence be granted.

         The Report and Recommendation was entered on October 20, 2019. After being granted an extension of time, Plaintiff Winston McIntyre (“McIntyre”) filed an objection to the Report and Recommendation on December 2, 2019 (Doc. 44).


         McIntyre, an inmate of the Illinois Department of Corrections (“IDOC”), was incarcerated at Menard Correctional Center (“Menard”) at the time he initiated this lawsuit. McIntyre alleges that Defendant Hunter ordered him to mop up flood waters despite having an amputated foot and insufficient footwear and, as a result, he slipped and was knocked unconscious on April 20, 2017. McIntyre alleges that he was provided inadequate medical treatment by Nurses Kirk and Rayburn following his fall. He proceeds on the following claims:

Count 1: Hunter was deliberately indifferent to the risk of falling when he ordered McIntyre, an amputee, to mop up after a flood, in violation of the Eighth Amendment.
Count 2: Kirk and Rayburn failed to adequately treat McIntyre's injuries resulting from his fall in violation of the Eighth Amendment.

         Defendant Lawrence, the warden of Menard, is named in his official capacity only for the purpose of carrying out any injunctive relief.

         On May 2, 2019, Defendants filed a Motion for Summary Judgment based on failure to exhaust administrative remedies (Docs. 25 and 26). Specifically, they assert that McIntyre did not file any grievances complaining of his April 20, 2017 fall, or his subsequent medical treatment for injuries sustained in the fall. On June 3, 2019, McIntyre filed a response, arguing that he did not receive his grievance back from his counselor (Doc. 28). He also attached two undated emergency grievances to his response, as well as a grievance dated August 31, 2017.

         On October 16, 2019, Magistrate Judge Daly held a hearing on Defendants' Motion for Summary Judgment pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).

         The Report and Recommendation

         Magistrate Judge Daly recommends granting Defendants' Motion for Summary Judgment. First, Judge Daly found that no grievance in the record exhausted the available administrative review process. The only grievance in the record for which there is an institutional response is the grievance dated August 31, 2017, and McIntyre's counselor responded to this grievance on September 11, 2017. Although McIntyre contends that he submitted this grievance to the grievance officer, Judge Daly did not find his testimony to be credible. She specifically noted that it is contradicted by the record in this case.

         Second, Judge Daly made the same finding with regard to the undated emergency grievances. She reasoned that the grievances received no institutional response and there is no evidence to substantiate McIntyre's assertion that he submitted them for review to the warden. The grievances were not dated and McIntyre was unable to provide any particular timeframe in which they may have been submitted. Judge Daly noted that McIntyre submitted a letter to the warden in July 2017 indicating that he sent two emergency medical grievances about two months prior, but it is not clear from this letter whether McIntyre was speaking about the undated grievances in the record or other grievances, not is it clear if McIntyre was complaining about medical issues related to this lawsuit.

         Lastly, Judge Daly considered McIntyre's testimony that he submitted a grievance dated May 30, 2017 to the warden and did not receive it back. She acknowledged Lashbrook's admission that this grievance was received as a non-emergency and should have been directed toward staff, not Lashbrook. Judge Daly noted that, although there was a question as to what occurred with this grievance, there is no evidence concerning the contents of this grievance. Thus, Judge Daly could not conclude that this grievance addressed the ...

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