Leland v. Hubbard et al
Filing
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OPINION entered by Judge Sue E. Myerscough. SEE WRITTEN OPINION. Defendants' motions for summary judgment on exhaustion are denied (d/es 42 , 47 ). By January 31, 2013, the parties shall provide to each other the initial disclosures descri bed in Fed. R. Civ. P. 26(a)(1)(i)-(ii). Plaintiff's expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2) are due February 28, 2013. Defendants' expert disclosures pursuant to Fed. R. Civ. P.26(a)(2) are due March 29, 2013. Discover y closes June 28, 2013. Dispositive motions are due July 31, 2013. A final pretrial conference is scheduled for January 6, 2014 at 1:30 p.m. by personal appearance of Plaintiff and Defense counsel. The jury trial is scheduled on the Courts trailing trial calendar for February 4, 2014, at 9:00 a.m.. The actual date for jury selection and jury trial will be finalized at the final pretrial conference. Entered on 01/03/2013. (DM, ilcd)
E-FILED
Thursday, 03 January, 2013 02:06:05 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
FRED LELAND,
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Plaintiff,
v.
DR. HUBBARD et al.,
Defendants.
11-CV-3232
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff is pursuing claims for deliberate indifference to his
glaucoma during his incarceration in Western Illinois Correctional
Center. Plaintiff was released on parole in December 2012. Defendants
move for summary judgment, arguing that Plaintiff failed to exhaust his
administrative remedies.
The parties agree that Plaintiff did not follow the typical grievance
procedure—Plaintiff did not submit his grievance to the counselor, then
to the grievance officer, then to the warden, and then to the
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Administrative Review Board.
However, Plaintiff did submit an emergency grievance stating that
his glaucoma medication had run out and that he feared going blind
without his eye medication. The Warden determined that an emergency
was not substantiated and instructed Plaintiff to submit his grievance in
the normal manner. Plaintiff asserts that, after the Warden’s decision,
Plaintiff did file a grievance in the normal manner but received no
response.
Defendants argue that Plaintiff should have appealed to the
Administrative Review Board the Warden’s determination that Plaintiff’s
grievance was not an emergency. The problem with this argument is that
the Board has six months to render a decision. 20 Ill. Admin. Code
504,850(f). The Board must “expedite” an appeal if the Warden
determines the grievance is an emergency, but here the Warden denied
emergency designation.
An inmate should not be able to escape the normal grievance
procedure by falsely labeling a grievance an emergency, but that did not
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happen here. Plaintiff feared that his eyesight was in imminent danger,
and Defendants offer no evidence that this fear was unreasonable or
contrived. As stated by the Seventh Circuit:
If a prisoner has been placed in imminent danger of serious
physical injury by an act that violates his constitutional rights,
administrative remedies that offer no possible relief in time to
prevent the imminent danger from becoming an actual harm
can’t be thought available.
Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173 (7th Cir.
2010).
The Court accordingly concludes that Plaintiff exhausted his
available administrative remedies when he filed his emergency grievance,
even though he did not appeal the Warden’s decision that an emergency
was not substantiated.
IT IS THEREFORE ORDERED:
1) Defendants’ motions for summary judgment on exhaustion are
denied (d/e’s 42, 47).
2) By January 31, 2013, the parties shall provide to each other the
initial disclosures described in Fed. R. Civ. P. 26(a)(1)(i)-(ii).
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3) Plaintiff’s expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2)
are due February 28, 2013.
4) Defendants’ expert disclosures pursuant to Fed. R. Civ. P.
26(a)(2) are due March 29, 2013.
5) Discovery closes June 28, 2013.
6) Dispositive motions are due July 31, 2013. A summary
judgment motion which relies on Plaintiff’s deposition or medical records
must attach the complete copy of the deposition and the complete
medical records for the relevant time period. Summary judgment
motions should include affidavits from the parties based on their personal
knowledge.
7) Written discovery must be served on a party at least 30 days
before the discovery deadline. Discovery requests and responses are not
filed with the court, unless there is a dispute regarding such discovery.
See CDIL-LR 26.3. Motions to compel discovery must be accompanied
by the relevant portions of the discovery request and the response.
Additionally, except for good cause shown, motions to compel must be
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filed within 14 days of receiving an unsatisfactory response to a timely
discovery request.
8) A final pretrial conference is scheduled for January 6, 2014 at
1:30 p.m. by personal appearance of Plaintiff and Defense counsel. The
parties are directed to submit an agreed, proposed final pretrial order at
least 14 days before the final pretrial conference.
9) The jury trial is scheduled on the Court’s trailing trial calendar
for February 4, 2014, at 9:00 a.m.. The actual date for jury selection and
jury trial will be finalized at the final pretrial conference.
ENTERED: January 3, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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