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Salley v. Myers

United States District Court, S.D. Illinois

January 2, 2020

DONTANEOUS SALLEY, Plaintiff,
v.
DOCTOR MYERS, ASSISTANT WARDEN LOVE, and WARDEN OF PINCKNEYVILLE CORRECTIONAL CENTER, Defendants.

          MEMORANDUM AND ORDER

          HON. REONA J. DALY UNITED STATES MAGISTRATE JUDGE

         The matter is before the Court on the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Doc. 50) filed by Defendant Percy Myers, M.D. and the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies (Doc. 53) filed by Defendants Larue Love and Christopher Scott Thompson. For the following reasons, Defendants' motions are GRANTED.

         Background

         Plaintiff Dontaneous Salley, an inmate in the custody of the Illinois Department of Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was incarcerated at Pinckneyville Correctional Center (“Pinckneyville”). Following threshold review, Plaintiff proceeds on the following claims:

Count 1: Eighth Amendment claim against Doctor Myers for confiscating Plaintiff's cane on March 13, 2019, and refusing to return it to him after he fell and injured himself on March 19, 2019.
Count 2: Eighth Amendment claim against Doctor Myers for refusing to treat the painful lower back and leg injuries that Plaintiff suffered when he fell on March 19, 2019.
Count 3: Eighth Amendment claim against Assistant Warden Love for refusing to help Plaintiff secure medical treatment or his cane on March 19, 2019.
Count 4: First Amendment retaliation claim against Doctor Myers for confiscating Plaintiff's cane, causing him to fall, and denying him medical treatment

         Defendants filed motions for summary judgment asserting Plaintiff failed to properly exhaust his administrative remedies prior to filing this lawsuit (Docs. 50, 53). Specifically, Defendants contend Plaintiff did not wait for a response to his grievance prior to filing suit. Plaintiff filed a response (Doc. 57)[1] asserting he filed an emergency grievance on March 13, 2019 but did not receive an immediate response.

         The Court reviews the following relevant grievance contained in the record.[2]

         March 13, 2019 (#778-03-19) (Doc. 57 at 12-13): This grievance was filed as an emergency.[3] Plaintiff states he was called for a healthcare pass with Dr. Myers on March 13, 2019. Dr. Myers requested that Plaintiff produce his permits for a cane, a low bunk, and a low gallery. Plaintiff responded that those permits should be in his medical file. Myers insisted Plaintiff produce a copy and when Plaintiff refused, Myers ended the appointment and told him to leave his cane. Plaintiff grieved that Myers told him that is what happens to people to file grievances and lawsuits against him. Plaintiff requested that the Warden of Programs and the HCUA correct Myers' misconduct.

         Plaintiff's Cumulative Counseling Summary notes Grievance #778-03-19 regarding inadequate medical treatment was received marked emergency on March 15, 2019 (Doc. 51-3 at 1). On March 27, 2019, Grievance #778-03-19 was deemed Non-Emergency by the CAO and returned to the offender. There is no further documentation in the record regarding the grievance.

         After a careful review of the arguments and evidence set forth in the parties' briefs regarding the issue of exhaustion, the Court determined that an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) is not necessary.

         Legal ...


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