Case No. 3:17-cv-170-NJR-DGW
REPORT AND RECOMMENDATION
WILKERSON, Magistrate Judge :
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997e(a). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants Knebel, Santos, Singh, and Wexford (Doc. 57) be DENIED that the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants Krebs and Warden (Doc. 64) be DENIED, and that the Court adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff, an inmate residing at the Centralia Correctional Center, is proceeding on the following claims filed pursuant to 42 U.S.C. § 1983:
Count 1 - Singh exhibited deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment by prescribing him high levels of Lithium which led to his overdose and the deterioration of his health.
Count 2 - Rodos exhibited deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment by allowing his prescription of high levels of Lithium to continue despite its causing his health to deteriorate.
Count 3 - Santos exhibited deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment by allowing his prescription of high levels of Lithium to continue despite being notified that it was causing his health to deteriorate.
Count 4 - Wexford exhibited deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment by maintaining a policy at Centralia of providing deficient medical and mental health staffing and resources.
Count 5 - Krebs and Knebel exhibited deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment by carrying out Wexford's policy of providing deficient medical and mental health staffing and resources and redirecting Plaintiff when he spoke to them about his condition instead of addressing his condition themselves.
Count 6 - John/Jane Doe exhibited deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment by continuing to administer his prescription of high levels of Lithium despite recognizing that it was causing his health to deteriorate.
From the parties' filings, it appears that these events occurred prior to December 3, 2015, the date when Plaintiff was transferred to St. Mary's Hospital and diagnosed with Lithium toxicity. He was released from the hospital 2 days later and placed "under special care" at the prison. Only Defendants Singh (Count 1), Santos (Count 3), Wexford (Count 4), Knebel (Count 5), and Krebs (Count 5) seek summary judgment on the issue of exhaustion of administrative remedies.
There is no dispute that Plaintiff did not file any grievance regarding the above claims prior to filing this lawsuit. There also is no dispute as to the condition that Plaintiff was in as reflected in his medical records. Plaintiff has been diagnosed with schizoaffective disorder with psychotic features (Doc. 71-2, p. 7) and was admitted to St. Mary's Hospital where he was found to have Lithium Toxicity (Id. 2). While at the hospital, he was described as having "increased shuffling gait, uncontrolled tremors, scattered thought, decreased appetite and nystagmus, altered mental state" (Doc. 71-2, p. 1). A few days later at Centralia, he was described as having abnormal behavior and exhibiting shaky thought process (Id. 7). Two days later (December 10, 2015), he was found to have clear speech and no mental deterioration (Id. 10). The medical records continue in this manner through February 7, 2016 - with reports of an appropriate mental state followed with reports of problems with confusion and abnormal thought processes, concentration, and judgment. Later, in May 2016, another inmate (Ramon Clark) observed Plaintiff in a "zombie-like state" (Doc. 81, p. 2). The witness also observed Plaintiff seek assistance in filing a grievance from a correctional officer - the officer referred Plaintiff to his counselor and his counselor referred Plaintiff back to the officer (Id.). However, in Plaintiff's cumulative counseling summary in May 2016, it is noted that Plaintiff did write a grievance regarding a medical bill related to his hospitalization (Doc. 65-2, p. 2).
Involuntary eye movement.
An implication is that Plaintiff sought a grievance related to the claims in this suit. This implication is also contained in his amended complaint, filed on May 30, 2017 (Doc. 15, p. 8). The amended complaint is not in the form of an affidavit.
Plaintiff provided an affidavit, which the Court finds credible, that during the time period after his hospitalization, his mental condition and the medications he was taking hindered his ability to understand that Defendants may have treated him inappropriately (Doc. 71-1). As he states, however, he "eventually was able to understand that my hospitalization was somehow related to the amount of Lithium being prescribed to me" and that this realization occurred no earlier than 2 months after he had been released from the hospital (Id.). At that point, Plaintiff received help in preparing the Complaint he filed with the Court on February 17, 2017 (Id.). He then became aware that he needed to file a grievance before filing his complaint and submitted a grievance on September 23, 2017 (Id).
While Plaintiff may not have been aware of the cause of the Lithium Toxicity, the culpability of Defendants, or that he needed to file a grievance before he filed his complaint, he was aware of the grievance process. As noted above, he submitted a grievance in May 2016. He also submitted a grievance in July, 2005, was informed of the grievance procedure on February 25, 2010 and March 16, 2010, submitted a grievance in July 2017, declined to submit a grievance in August 2017 because the issue had been resolved, and submitted another grievance in August 2017 as to C/O Wilkinson (Doc. 65-2).
In the September 23, 2017 grievance, Plaintiff explained that he recently had been weaned off his medications which had been interfering with his thought process (Doc. 65-3, p. 1). He stated that this was a legitimate reason for filing a late grievances as to the Lithium Toxicity he suffered. For relief he states "[t]hose who ordered and administered the medication to be held accountable for my overdose" (Id.). This last statement was added after Plaintiff was informed by his counselor that no relief was requested. In response to the substance of the grievance, Plaintiff's counselor informed him that the grievance was untimely and that he was treated appropriately. There is no evidence that Plaintiff submitted this grievance to the grievance officer or that he appealed to the Administrative Review Board and the Director of the Illinois Department of Corrections. There also is no evidence that his counselor assisted in any way in Plaintiff's appealing the grievance to the grievance officer and the Warden.
CONCLUSIONS OF LAW
Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
The Prison Litigation Reform Act provides:
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.
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr.,182 F.3d 532, 534-535 (7th Cir. 1999) (stating that §1997e(a) of the PLRA "makes exhaustion a precondition to bringing suit" under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025. In Pavey, the Seventh Circuit instructed District Courts to conduct a hearing to determine whether a Plaintiff has exhausted his remedies. Id. 544 F.3d at 742. If a Plaintiff has exhausted his remedies, the case will proceed on the merits. If, however, a Plaintiff has not exhausted, the Court may either allow Plaintiff to exhaust or terminate the matter.
Under the procedures set forth in the relevant Illinois Administrative Code, an inmate must first attempt to resolve a complaint informally with his Counselor. 20 ILL. ADMIN. CODE § 504.810(a). It is undisputed that Plaintiff did not attempt to informally grieve his complaints to his counselor or file a grievance prior to filing this lawsuit. The only question is whether he was either prevented from doing so or whether he lacked the capacity to do so, thus rendering the process unavailable. Plaintiff states that at some point, he realized that Defendants may have done something improper and that their actions may have resulted in his hospitalization. The Code required Plaintiff to file a grievance "within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance." Id. A late grievance may be considered if the inmate can demonstrate "good cause." Id. While Plaintiff focuses on the 60 day period after he was released from the hospital, he could have filed a grievance thereafter, once he realized that something was amiss. Nonetheless, the Court finds that Plaintiff did not have the mental wherewithal to file a grievance and that the process was thus rendered unavailable to him prior to filing of this lawsuit.
The Code was amended on April 1, 2017 by 41 Ill. Reg. 3869. --------
An inmate is required to exhaust only those administrative remedies available to him. See 42 U.S.C. § 1997e(a). The availability of a remedy does not depend on the rules and regulations as they appear on paper, but on "whether the paper process was in reality open for the prisoner to pursue." Wilder v. Sutton, 310 Fed.Appx. 10, 13 (7th Cir. 2009). As Plaintiff points out, a physical or mental hindrance may excuse the filing of a grievance. See Pavey, 544 F.3d at 740 (7th Cir. 2008) (noting that there was a factual question as to whether Plaintiff could file a grievance given his broken arm). Illinois' Administrative Code further recognizes that "impaired" individuals may require assistance in filing grievances. 20 ILL. ADMIN. CODE § 504-810(c)(2).
Due to Plaintiff's mental and physical impairments, he was incapable of filing a grievance for much of the time that he was housed at Centralia CC after his release from the hospital. While the record contains instances of lucidity, Plaintiff continued to suffer periods of mental insufficiency, confusion, and lack of memory such that he was incapable of filing a grievance. He also had requested a grievance form, perhaps during a period of lucidity, but was given the run-around. To be sure, Plaintiff's counselor was not required to affirmatively take steps to discover whether Plaintiff wanted to file a grievance. See Johnson-Ester v. Elyea, 2009 WL 632250, * 7 (N.D.Ill. 2009) ("Of course, no reasonable reading of Section 504.810(c)(2) could insist that prison officials be clairvoyant or entirely proactive, such that they would be required to ask impaired or disabled offenders whether they had any complaints."). However, Plaintiff has had assistance in submitting grievances and the complaint in this Court - indications that he at least needed assistance. And, while he did submit a grievance regarding medical bills, there has been no showing that, at that time, he appreciated the nature of his claims against Defendants.
Defendants argue that even after that realization or discovery, Plaintiff did not submit a grievance that would have informed anyone that he was complaining about that treatment. "The PLRA was enacted not only to limit frivolous suits but also to permit the correctional facilities to address the problem before responding to litigation." Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004). They assert that Plaintiff was familiar with the grievance process and was capable of grieving matters - he could have and should have filed a grievance once he determined that his rights had been violated. In this circumstance, "[e]xhaustion is required even if the prisoner believes his efforts in securing relief will be futile or if the administrative authority has no power to grant the requested relief." Obriecht v. Raemisch, 517 F.3d 489, 492 (7th Cir.2008) (citations omitted). At the very least, Plaintiff could have presented the "good cause" required to file an untimely grievance. While this argument has some merit, the Court finds that Plaintiff's continued mental deficiencies, in addition to his limited remembrance and his limited mental capacity, made the administrative process unavailable.
In sum, Plaintiff suffered from debilitating mental impairments that prevented him from filing a grievance while he was housed at Centralia CC. While Plaintiff could have sought assistance from other inmates, the Administrative Code does not require such action nor did anyone employed by the prison assist Plaintiff in filing a grievance. Plaintiff did not forfeit the process; rather, it was rendered unavailable.
For the reasons set forth above, it is RECOMMENDED that the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants Knebel, Santos, Singh, and Wexford (Doc. 57) be DENIED, that the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants Krebs and Warden (Doc. 64) be DENIED, and that the Court adopt the foregoing findings of fact and conclusions of law. DATED: July 27, 2018
DONALD G. WILKERSON
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days after service.
You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either adopting, modifying, or rejecting the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.
Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).