Conley v. Anglin et al
Filing
57
MEMORANDUM OPINION AND ORDER entered by Judge Harold A. Baker on 7/15/2011. The defendants, Ameji and Fueyo's Motion for Summary Judgment 41 is Granted. The Court dismisses Christine Miles as a defendant in this lawsuit. The parties are to bear their own costs. Defendants Ameji, Fueyo and Miles are terminated. See written order. Copy of order to pro se plaintiff by way of e-filing project. (DE, ilcd)
E-FILED
Friday, 15 July, 2011 01:56:51 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ANTHONY CONLEY,
Plaintiff, )
v.
10-cv-02013
KEITH ANGLIN, Warden, VICTOR CALLOWAY,
Assistant Warden, MARY MILLER, Health
Care Administrator, CHRISTINA MILES,
Nurse Of Danville C.C., DOCTOR AMEJI,
Ex-Doctor of Danville C.C., and TERRY FEUYO,
Ex-Nurse Director of Danville C.C.,)
Defendants.
MEMORANDUM OPINION AND ORDER
Before the court are the defendants, Bashirahmed Ameji, M.D., an Terry Fueyo’s
summary judgment motion [41] and the plaintiff’s response [45].
Standard
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Any discrepancies in the factual record should be evaluated in the nonmovant’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the
lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In
order to be a “genuine” issue, there must be more than “some metaphysical doubt as to the
material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.
“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 events.”
Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). “If a party . . . fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
grant summary judgment if the motion and supporting materials – including the facts considered
undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). A party opposing
summary judgment bears the burden to respond, not simply by resting on its own pleading but by
“set[ting] out specific facts showing a genuine issue for trial.” See Fed. R. Civ. P. 56(c). In
order to be a “genuine” issue, there must be more than “some metaphysical doubt as to the
material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If
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[the nonmovant] does not [meet his burden], summary judgment should, if appropriate, be
entered against [the nonmovant].” Fed. R. Civ. P. 56(e). Further, “[t]he plaintiff cannot merely
allege the existence of a factual dispute to defeat summary judgment …. Instead, he must supply
evidence sufficient to allow a jury to render a verdict in his favor.” Basith v. Cook County, 241
F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party “must present sufficient
evidence to show the existence of each element of its case on which it will bear the burden at
trial.” Filipovic v. K&R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the
non-movant to meet all of the above requirements subjects him to summary judgment on his
claims.
Affidavits must be based on the personal knowledge of the affiant and “set out facts that
would be admissible in evidence.” Fed. R. Civ. P. 56(c)(4) (emphasis added). Personal
knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng.
Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). “But the inferences and opinions must be
grounded in observation or other first-hand personal experience. They must not be based on
flights of fancy, speculations, hunches, intuitions or rumors remote from that experience.”
Visser, 924 F.2d at 659. It is also well settled that “conclusory allegations and self-serving
affidavits, if not supported by the record, will not preclude summary judgment. Keri v. Barod of
Trustees of Purdue University, 458 F.3d 620, 628 (7th Cir.2006)(citing Haywood v. N. Am. Van
Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997).
Background
Plaintiff alleges that he suffered deliberate indifference to his serious medical needs at
the hands of Dr. Ameji and Terry Fueyo. Specifically, Plaintiff alleges that he suffered
complications after having blood drawn from his left arm. Plaintiff alleges that the blood draw
caused him to have a blood clot that caused him to suffer multiple heart attacks. Plaintiff has
clarified in his answers to Defendants Ameji and Fueyo’s interrogatories that their treatment of
the alleged blood clot is his only basis for his deliberate indifference claim. Further, Plaintiff has
clarified that he does not make an excessive force claim against Dr. Ameji or Terry Fueyo. (See
Exhibit 1, Plaintiff’s answers to Defendant Ameji’s interrogatories; and Exhibit 2, Plaintiff’s
answers to Defendant Fueyo’s interrogatories, which can be found attached to Defts.’ motion.
Based on Plaintiff’s clarifications, Defendants Ameji and Fueyo argue that they are entitled to
summary judgment. Defendants assert that Plaintiff has failed to exhaust his administrative
remedies as to his claims of deliberate indifference and failure to intervene. Defendants assert
that Plaintiff does not mention Dr. Ameji or Terry Fueyo in the grievance that he attempted to
appeal to the Director of the Illinois Department of Corrections.
Undisputed Material Facts
1.
Gina Allen is employed within the Office of Inmate Issues for the Illinois Department of
Corrections (“the Department”). The Administrative Review Board (“ARB”) is a
subdivision of the Office of Inmate Issues, of which she is a chairperson. As an
Administrative Review Board chairperson, her duties involve, among other things,
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reviewing and responding to grievances filed by Department inmates in the manner set
forth herein. (Allen Affidavit.)
Inmates incarcerated within the Department may file grievances in accordance with
Department Rule 504F: Grievance Procedures for Committed Persons (20 Ill. Admin.
Code 504.800, et seq.). Subject to certain exceptions, which are set forth by regulation,
an inmate must first attempt to resolve his grievances through his counselor. A grievance
form is available to inmates for submitting their grievances. The grievance form contains
an area for the counselor to respond. After responding to the inmate, the counselor
returns the grievance form, with his response, to the inmate. If the grieved issue remains
unresolved after the counselor has responded, the inmate may forward this grievance with
the grievance counselor’s response to the facility grievance officer designated by the
Chief Administrative Officer (“CAO”). The CAO is often the warden. The grievance
officer may personally interview the inmate and/or other witnesses as deemed appropriate
and obtain documents to determine the merits of the inmate’s grievance. Upon
completion of such investigation, the grievance officer’s conclusions and, if appropriate,
recommended relief, is forwarded to the CAO. The CAO’s, or the CAO’s designee’s,
decision is then submitted to the grieving inmate. (Allen Affidavit.)
If after receiving the CAO’s decision, the inmate feels the issue is still unresolved, he
may appeal in writing to the Director of the Department by submitting the grievance
officer’s report and the CAO’s decision. The ARB, as the Director’s designee, reviews
the appeal and first determines whether the inmate’s grievance can be handled without
the necessity of a hearing. If so, the inmate is so advised. Other matters are scheduled
for an ARB hearing involving an interview of the grieving inmate, examining relevant
documents, and at the ARB’s discretion, calling witnesses. The ARB submits a written
report of its findings and recommendations to the Director or the Director’s designee who
then reviews the report and makes a final determination on the grievance. A copy of the
ARB’s report and the Director’s final decision is sent to the inmate who filed the
grievance. The originals of these documents are maintained in the ARB’s files.
Department Rule 504F: Grievance Procedures for Committed Persons (20 Ill. Admin.
Code §504.800, et seq.) provides no further means for review beyond this step. If the
inmate has not followed procedure, and for example, has not first attempted to resolve the
issue through his counselor or grievance officer, then the original grievance is returned to
him along with a form describing the procedural deficiency. (Allen Affidavit.)
Certain issues may be grieved directly to the ARB, rather than first through a counselor
or grievance officer. These issues include: a) decisions involving the involuntary
administration and psychotropic medications; b) decisions regarding protective custody
placement, including continued placement in, or release from, protective custody; c)
decisions regarding disciplinary proceedings which were made at a facility other than the
facility where the inmate is currently assigned; and d) other issues, except personal
property issues, which pertain to a facility other than the facility where the inmate is
currently assigned. These grievances are then handled in accordance with the procedures
described in paragraph 3 above. (Allen Affidavit.)
An inmate may request a grievance be handled on an emergency basis by forwarding the
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grievance directly to the CAO rather than to a counselor or grievance officer. If the CAO
determines that there is a substantial risk of imminent personal injury or other serious or
irreparable harm to the inmate, the grievance may be handled on an emergency basis. An
inmate may appeal the CAO’s decision in such a situation to the ARB. The appeal is
then handled in accordance with the procedures described in paragraph 3 above. (Allen
Affidavit.)
The grievance procedure may not be utilized for complaints regarding decisions which
are outside the Department’s authority such as parole decisions, clemency or orders
regarding the length of sentences or decisions which have been reviewed by the Director.
(Allen Affidavit.)
At the request of Matthew Lurkins of Heyl, Royster, Voelker & Allen, Gina Allen has
searched the ARB’s records for grievances from Anthony Conley, Register No. K-57454,
from February 24, 2008 through the present which mention medical issues and
referencing Dr. Bashir Ameji or Terry Fueyo. During this time frame, there were no
grievances meeting this criteria received from Mr. Conley. Plaintiff did file five
grievances during this time period that referenced his medical care. Copies of those
grievances received by the ARB from Mr. Conley are attached to Defendants’ Motion.
None of the grievances concerned Dr. Ameji or Terry Fueyo, however. Thus, although
the Illinois Department of Corrections’ grievance procedures provided Mr. Conley with
administrative remedies for any perceived problem with Dr. Ameji or Terry Fueyo, Mr.
Conley failed to take all of the steps prescribed in the Department’s grievance procedure
and did not appeal to the ARB, thereby failing to avail himself of the administrative
remedies that were available to him. (Allen Affidavit.)
The grievance which appears to be the most relevant to the allegations made in this case
is the grievance regarding a Nurse Tina drawing blood from his left arm. This grievance
was denied as untimely because Mr. Conley did not submit it to the ARB within 30 days
of receiving the Grievance Officer and Chief Administrative Officer’s signatures. (Allen
Affidavit.)
Further, this grievance was not properly filed because Plaintiff added additional issues
and statements to the grievance after it had been denied by the Grievance Officer and
CAO. Specifically, Mr. Conley added additional complaints on May 6, 2008 to the
original language in the grievance after he received the CAO response. (Allen Affidavit.)
Discussion and Conclusion
Pursuant to the Prison Litigation Reform Act, all prison inmates bringing an action under
42 U.S.C. § 1983, with respect to prison conditions, must first exhaust all administrative
remedies that may be available to them before being allowed to proceed with the lawsuit. 42
U.S.C. § 1997e(a). Section 1997e(a) specifically provides:
No action shall be brought with respect to prison conditions under
§ 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 are exhausted.
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The statute is “too clear” and suits “must be dismissed” if administrative remedies are not
followed. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 533, 534 (7th Cir. 1999). In the
Illinois Department of Corrections, there is a grievance procedure. The grievance procedure
requires the prisoner to file a timely grievance regarding an issue at the institutional level;
receive a response from the Chief Administrative Officer of the institution (Warden) and if the
Warden denies the grievance, appeal the denial to the Administrative Review Board (ARB). 20
Ill. Admin. Code § 504.850. Therefore, it is not until the ARB has made a decision that a
prisoner has exhausted his administrative remedies.
The only grievance Plaintiff properly exhausted involving Dr. Ameji and Terry Fueyo
was regarding an asthma inhaler. However, the plaintiff does not make any allegations regarding
an asthma inhaler in his complaint. Plaintiff’s grievance regarding his blood pressure medication
being delayed one month does not mention Dr. Ameji or Terry Fueyo. According to IDOC
regulation a grievance filed must specifically name the party complained about specifically, if
known. See 20 Ill. Adm. Code § 504.810(b). Additionally, Plaintiff has failed to exhaust his
administrative remedies as is in the manner that is required by Illinois Department of Corrections
Administrative Rules. Specifically, Plaintiff was to appeal the finding of the CAO within 30
days of the decision. However, Plaintiff’s appeal was untimely. He did not meet the 30 day
deadline. Further, even if Plaintiff had exhausted his administrative remedies, he failed to
mention Dr. Ameji or Terry Fueyo in any manner in his grievance. According to Illinois
Department of Corrections Rules, Plaintiff must specifically identify the staff by name when
known against whom he has a grievance. See Ill. Admin. Code tit. 20, § 504.810(b).
According to the grievance filed by Plaintiff, he merely grieved the fact that LPN Tina
allegedly injured his left arm during a blood draw. In fact, Plaintiff notes in his grievance that he
had not suffered any side effects from the blood draw but he was merely filing the grievance in
order to “cover myself in case there is something major wrong with my arm”. Accordingly,
Plaintiff has not properly exhausted the medical treatment provided to him by Terry Fueyo or Dr.
Ameji. Neither of the moving Defendants are specifically named in the grievance, nor are they
referenced in any way.
The court notes that Plaintiff has failed to serve the defendant Christine Miles. He raises
a claim against Ms. Miles alleging she was deliberately indifferent and used excessive force
when she drew blood from his left arm which left a clot in his wrist. However, for the same
reasons discussed above as to Dr. Ameji and Terry Fueyo, the court finds the Plaintiff did not
exhaust administrative remedies for his claim that the nurse Tina, later identified as Christine
Miles, was deliberately indifferent to his serious medical needs. His grievance regarding the
blood draw was not timely appealed. Therefore, pursuant to 42 U.S.C. ¶ 1997e(a), the court
dismisses Christine Miles as a defendant in this lawsuit.
Based on the foregoing, it is ordered:
1.
The court finds Plaintiff has failed to exhaust administrative remedies. Pursuant to 42
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2.
U.S.C. Section 19973(a) and Fed. R. Civ. Pro. Rule 56, Defendants Ameji and Fueyo’s
summary motion is granted. Further, pursuant to 42 U.S.C. ¶ 1997e(a), the court
dismisses Christine Miles as a defendant in this lawsuit. The clerk of the court is directed
to terminate Ameji, Fueyo and Miles, forthwith. The parties are to bear their own costs.
If the plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this
court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis should set forth the issues the plaintiff plans to present
on appeal. See Fed. R. App. P. 24(a)(1)(C). If the plaintiff does choose to appeal, he will
be liable for the $455.00 appellate filing fee irrespective of the outcome of the appeal.
Furthermore, if the appeal is found to be non-meritorious, the plaintiff may also
accumulate a strike under 28 U.S.C. 1915(g).
Enter this 15th day of July 2011.
\s\Harold A. Baker
__________________________________________
Harold A. Baker
United States District Judge
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