Case No. 3:17-cv-00329-JPG-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 J. Phil Gilbert 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 the Court GRANT the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Doc. 60), dismiss this action without prejudice, and adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff Michael Thompson, an inmate in Menard Correctional Center brought this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Thompson contends officials at Menard were deliberately indifferent to his serious medical condition (Crohn's disease). The Court performed a preliminary review of the Amended Complaint pursuant to 28 U.S.C. § 1915A and Thompson was allowed to proceed on the following claims:
Count 1 - Eighth Amendment deliberate indifference claim to serious medical needs against Ritz, Feinerman, Shepherd, Fahim, Shearing, and Trost in relation to Plaintiff's Crohn's disease.
Count 2 - Eighth Amendment deliberate indifference claim against Wexford Health Sources, Inc. for instituting and following cost-saving policies and practices which delayed the provision of medical care and resulted in inadequate treatment, and which caused Menard providers to fail to treat Plaintiff's Crohn's disease.
Thompson arrived at Menard in November, 2008 (Doc. 1, p. 2). He informed medical staff he suffered from Crohn's disease and took medication for the disease (Doc. 1, p. 2). Thompson explained that one of his medications, Remicade, was critical for controlling the flare-ups associated with his condition and preventing his disease from escalating (Doc. 1, p. 2). Medical staff did not prescribe Remicade (Doc. 1, p. 2). Instead, Thompson was treated with a less effective medication that barely addressed his pain and never alleviated the symptoms of his condition (Doc. 1, p. 2). Over the next eight years, medical staff ignored Thompson's medical needs associated with his condition and continued to provide only ineffective treatment options (Doc. 1, pp. 2-3).
Thompson alleges the inadequate medical care exacerbated his symptoms and escalated the disease (Doc. 1, p. 3). Specifically, he states the severity of the following symptoms increased: (1) bloating, (2) stomach cramps/spasms, (3) vomiting, (4) body aches, (5) hot and cold sweats, (6) loss of sleep, (7) loss of appetite, and (8) severe weight loss (from 190 to 135 lbs.) (Doc. 1, p. 3). Thompson contends the ineffective treatment was the equivalent of providing no medical care whatsoever (Doc. 1, pp. 2-3).
In 2015, Thompson stayed in the infirmary at Menard's Healthcare Unit on two occasions and was hospitalized at outside facilities on two occasions for severe flare-ups (Chester Hospital and Carbondale Hospital) (Doc. 1, p. 3). Specialists at Carbondale hospital indicated that Thompson's condition was severe and recommended specific follow-up treatment, including surgery (Doc. 1, p. 3). The specialists told Thompson his condition had deteriorated so much, further treatment would be ineffective and surgery was the only option (Doc. 1, p. 3). Dr. Trost ignored the recommendations, took no action, and refused to appeal the Collegial Review Board's denial of Thompson's request for surgical treatment.
On April 19, 2016, Thompson was taken to an outside hospital for an emergency surgery that required removal of a significant portion of his large intestine (Doc. 1, p. 3). This led to a bladder infection that caused waste to be excreted through his urethra (Doc. 1, p. 3). Following the April 2016 surgery, Thompson was advised it would take six months to reverse the operation and remove the colostomy bag (Doc. 1, p. 3). Before that could happen, in October 2016, Plaintiff was taken to an outside hospital for a second emergency surgery (Doc. 1, p. 3). This surgery was necessary because Thompson's small intestine had become strangulated (twisted in a knot), which resulted in that section of the small intestine being removed (Doc. 1, p. 3)
Thompson alleges his condition unnecessarily deteriorated, resulting in emergency surgeries and further injury, as a result of inadequate care provided by the Defendants. Thompson specifically alleges that over the years, Ritz, Feinerman, Shepherd, Fahim, Shearing, and Trost have been responsible for treatment of his Crohn's disease (Doc. 1, p. 4). That these Defendants failed to provide effective treatment, subjected Thompson to deficient treatment, refused to pursue treatment that had been recommended, and/or persisted in pursuing ineffective treatment (Doc. 1, pp. 4-5).
Thompson contends Wexford is subject to liability for implementing and enforcing policies that emphasize the minimization of monetary expenditures over access to adequate care (Doc. 1, pp. 4-5).
LEGAL AND ADMINISTRATIVE STANDARDS
Summary judgment is proper only where the moving party can demonstrate no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). All facts and reasonable inferences must be construed in favor of the non-moving party. Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017) (citing Calumet River Fleeting, Inc. v. Int'l Union of Operating Eng'rs, Local 150, AFL-CIO, 824 F.3d 645, 647-48 (7th Cir. 2016)). The judge's role at summary judgment is not to weigh the evidence or assess the facts, but simply to determine whether there is a genuine issue for trial. Id. at 259. The question is can there be only one reasonable conclusion based on the evidence, or could reasonable minds differ? Id. at 250-51.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust all administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a); Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). Proper exhaustion requires an inmate to "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Defendants, however, bear the burden of proving a failure to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d at 809.
Under the Illinois Administrative Code, an inmate must first attempt to resolve a complaint informally with his Counselor. ILL. ADMIN. CODE TIT. 20, § 504.810(a). If the complaint is not resolved, the inmate may file a grievance within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance. Id. § 504.810(b). The grievance form must contain factual details regarding each aspect of the offender's complaint, including what happened, when, where, and the name of each person who is the subject of the complaint. Id. The grievance officer is required to advise the Chief Administrative Officer at the facility in writing of the findings on the grievance. Id. § 504.830(d). The Chief Administrative officer shall advise the inmate of the decision on the grievance within two months of it having been filed, where reasonably feasible under the circumstances. Id.
An offender may appeal in writing to the ARB within 30 days after the date of the Chief Administrative officer's decision. Id. § 504.850(a). The ARB is required to submit a written report of its findings and recommendations to the Director of the IDOC. Id. § 504.850(d). The Director shall review the findings and recommendations of the Board and make a final determination of the grievance within six months after receipt of the appealed grievance by the ARB. Id. § 504.850(e). An inmate's administrative remedies are not exhausted until the appeal is reviewed by the Administrative Review Board and ruled on by the Director. See Id. § 504.850(a); See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006).
CONCLUSIONS OF LAW
Defendants allege they are entitled to summary judgment because the one grievance Thompson properly appealed was decided after he filed suit. The Court agrees.
There are four grievances at issue in this case: January 24, 2016 grievance; April 5, 2016 grievance; July 7, 2016 grievance; and December 18, 2016 grievance (Docs. 61-1, p. 13; Doc. 70, pp. 6, 8, 11). The January 24th grievance was returned to Thompson by the ARB because it was missing the grievance officer and chief administrative officer's signatures (Doc. 61-1, p. 12). The document is dated January 24, 2016 with a response from the counselor the following day (Doc. 61-1, p. 13). Under the Code, the chief administrative officer has two months from the date of filing to respond to a grievance. § 504.830(d). However, Thompson filed an appeal with the ARB just less than two weeks later (Doc. 61-1, p. 13). Thus, it appears he did not wait for the chief administrative officer to make a final determination as required by the administrative code. Further, the ARB returned the grievance to Thompson on February 16, 2016, well within his sixty day window to file a grievance (Doc. 61-1, p. 12). Thompson admitted in the hearing on this matter that he did not follow up on the returned grievance. Thus, the Court finds the January 24, 2016 grievance did not exhaust Thompson's administrative remedies.
An additional grievance dated June 15, 2009 was also produced by Defendants (61-1, pp. 15-17). Given that the grievance is dated almost eight years prior to Thompson filing suit, the Court does not consider it relevant to whether he exhausted his administrative remedies for this action. --------
The April 5, 2016 grievance also failed to exhaust Thompson's administrative remedies. From the document itself, it appears that Thompson sent the grievance directly to the ARB — the document was dated April 5, 2016 and received by the ARB on April 11, 2016 (Doc. 61-1, pp. 9-10). At the hearing, Thompson stated he had filed an earlier grievance with is counselor that was never responded to and therefore rewrote his grievance on April 5, 2016 and sent it directly to the ARB. Thompson was unable, however, to recall when he had filed the original grievance. Thus, the Court finds it appropriate to rely on the records submitted, and determines the April 5, 2016 grievance did not exhaust Thompson's administrative remedies.
As to the July 7, 2016 grievance, Thompson admitted during the hearing he did not send that grievance to either the warden or ARB. As a result, that grievance cannot form the basis for finding Thompson exhausted his administrative remedies.
Finally, it appears that Thompson did fully exhaust his administrative remedies with the December 18, 2016 grievance, but not until after he had filed this action. The December 18th grievance was denied by the counselor, grievance officer and warden (Doc. 70, pp. 11, 14). Thompson appealed the grievance to the ARB on January 30, 2017 and it was denied on June 6, 2017 (Doc. 61-1, p. 3). However, on March 31, 2017 — two months before the ARB issued its decision — Thompson filed this action (Doc. 1). An inmate's administrative remedies are not exhausted until the appeal is reviewed by the Administrative Review Board and ruled on by the Director. See Id. § 504.850(a); See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). Thus, the December 18, 2018 grievance was not exhausted until June 6, 2017 and therefore Thompson was not authorized to file this action until after that date.
For the foregoing reasons, the Court finds Thompson failed to exhaust his administrative remedies. Thompson is ADVISED the statute of limitations for filing of his claims runs two years after he has exhausted his administrative remedies. Thus, as the Court told Thompson at the hearing, there appears to be no bar to him refiling this action based on the allegations alleged in the December 18, 2016 grievance.
For the foregoing reasons, it is RECOMMENDED the Court GRANT the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Doc. 60), dismiss this action without prejudice, and adopt the preceding findings of fact and conclusions of law.
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. 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).
You are not to file an appeal as 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 affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge. DATED: August 3, 2018
DONALD G. WILKERSON
United States Magistrate Judge