Cross v. Baker et al
Filing
51
SUMMARY JUDGMENT OPINION: Defendants' Motion for Summary Judgment 41 is DENIED. An evidentiary hearing is scheduled for OCTOBER 22, 2015 at 9:30 a.m., at the U.S. Courthouse in Springfield, Illinois. Defendants' Motion to Dismiss and/or Motion for Sanctions 48 is DENIED at this time. Plaintiff's Motion 26 is DENIED. Plaintiff's Motion for Leave to File an Amended Complaint 37 is DENIED. Defendants' Motion for Extension of Time 32 is GRANTED. Plaintiff 9;s Motion to Withdraw Against Two Defendants 27 is GRANTED. Case is dismissed against Defendants Fessler and Worley. Clerk is directed to terminate these defendants. Plaintiff's Motion for Order to Issue Subpoena 28 is DENIED at this time. Defendants' Motion for Extension of Time to File Summary Judgment motions is GRANTED 49 . (SEE WRITTEN SUMMARY JUDGMENT OPINION). Entered by Judge Sue E. Myerscough on 6/29/2015. (GL, ilcd)
E-FILED
Monday, 29 June, 2015 12:18:40 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DANIEL CROSS,
)
)
Plaintiff,
)
)
v.
)
)
THOMAS BAKER, et al.
)
)
Defendants. )
14-3160
SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se, brings the present lawsuit
pursuant to 42 U.S.C. § 1983 alleging an Eighth Amendment
violation for deliberate indifference to a serious medical need
regarding medical treatment he received while incarcerated at
Western Illinois Correctional Center. The matter comes before this
Court for ruling on Defendants’ Motion for Summary Judgment on
the Issue of Exhaustion of Administrative Remedies (Doc. 41).
FACTS
Plaintiff filed the present lawsuit on May 22, 2014, alleging
that prison officials at Western Illinois Correctional Center
(“Western”) failed to provide adequate medical treatment for an
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Achilles heel injury he sustained during a basketball game at the
prison. (Doc. 1). In his Complaint, Plaintiff indicates that he filed
an emergency grievance related to the issue and he attached a copy
of this grievance to his Complaint. (Doc. 1 at 4-5). The grievance is
dated December 28, 2013.
According to records provided by Western, Plaintiff submitted
only one grievance. The grievance is dated March 6, 2014 and
describes dental care, or lack thereof, Plaintiff received at Western.
The grievance does not mention Plaintiff’s Achilles heel injury.
Records from the Administrative Review Board (“ARB”) show
Plaintiff did not appeal any grievances.
ANALYSIS
Failure to exhaust is an affirmative defense, and therefore the
burden of proof lies with the defendants. Turley v. Rednour, 729
F.3d 645, 650 (7th Cir. 2013). The Court must hold an evidentiary
hearing if a disputed issue of material fact exists, see Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008), but where none is
present, an evidentiary hearing is unnecessary and the issue of
exhaustion may be decided as a matter of law. Doss v. Gilkey, 649
F. Supp. 2d 905, 912 (S.D. Ill. 2009).
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The Prison Litigation Reform Act (PLRA) 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) (2013). The purpose of this requirement is to
“alert the state to the problem and invite corrective action.” Turley,
729 F.3d at 649 (internal citations omitted). The Seventh Circuit
has adopted a strict compliance standard to exhaustion, and to
exhaust remedies “a prisoner must properly use the prison’s
grievance process.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006). In other words, “a prisoner must 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).
If the prisoner fails to follow the grievance procedures, “the prison
administrative authority can refuse to hear the case, and the
prisoner's claim can be indefinitely unexhausted.” Id.; see Dole,
438 F.3d at 809 (quoting same). “The ‘applicable procedural rules’
that a prisoner must properly exhaust are defined not by the PLRA,
but by the prison grievance process itself.” Maddox v. Love, 655
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F.3d 709, 721 (7th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199,
218 (2007)).
The Illinois Administrative Code establishes the grievance
procedures for Illinois Department of Corrections inmates. Inmates
unable to resolve their issues informally with prison staff may file a
written grievance on a form provided by the prison. 20 ILL. ADMIN.
CODE § 504.810(a). The grievance must be filed “within 60 days
after the discovery of the incident, occurrence, or problem that gives
rise to the grievance.” Id. § 504.810(a). A grievance officer, however,
shall consider a grievance filed outside of the 60-day time period if
the inmate “can demonstrate that a grievance was not timely filed
for good cause….” Id. A grievance officer considers each grievance
and submits a recommendation to the Chief Administrative Officer,
who notifies the inmate of his decision. Id. § 504.830(d). An inmate
may appeal the CAO’s decision to the Director, but must do so
within 30 days of the decision. Id. § 504.850(a). Once an appeal is
received, the Administrative Review Board reviews the appeal and
provides the Director with a written report of its findings and
recommendations. Id. § 504.850(e).
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An offender may request that a grievance be handled on an
emergency basis by forwarding the grievance directly to the CAO.
Id. § 504.840. If the CAO determines that a “substantial risk of
imminent personal injury or other serious harm to the offender”
exists, then the grievance must be handled on an emergency basis.
Id. § 504.840(a). If so designed, the grievance process is expedited
and the CAO must respond to the officer, indicating the action
taken or which shall be taken. Id. § 504.840(b).
Defendants argue that Plaintiff failed to exhaust his
administrative remedies because he did not file a grievance related
to the Achilles heel injury and subsequent medical treatment, much
less follow the grievance process through to its conclusion. Plaintiff
counters by arguing that he filed an emergency grievance with the
warden and the warden failed to respond. Plaintiff provided a copy
of the grievance with his Complaint and with his response to the
Motion for Summary Judgment. (Doc. 44 at 10).
“If administrative remedies are not ‘available’ to an inmate,
then the inmate cannot be required to exhaust.” Kaba v. Stepp,
458 F.3d 678, 684 (7th Cir. 2006). “Availability” does not mean that
the remedy exists on paper, but whether the process was open to
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the prisoner in reality. Id. Stated differently, administrative
remedies become unavailable when, though a grievance system is in
place, prison officials effectively prevent a prisoner from availing
himself of it. See id. (remedies have been found to be unavailable
when prison officials fail to provide grievance forms, erroneously tell
an inmate he must wait for an investigation to conclude, fail to
respond to a properly filed grievance, or engage in affirmative
misconduct (citations omitted)). If a prisoner did all he could do to
avail himself of the process, and the failure to exhaust was through
no fault of his own, it cannot be said that the prisoner failed to
exhaust his available remedies. Dole, 438 F.3d at 811.
Defendants argue that Plaintiff’s alleged emergency grievance
does not contain any indicia that the grievance was filed, whether
through file stamp or other notation. Furthermore, Defendants
argue that, because the emergency grievance does not exist in
records maintained by Western, that Plaintiff did not properly file
this grievance. At this point, however, the Court cannot determine
whether the lack of records and other indicia is because of
Plaintiff’s failure to file the emergency grievance or because of
prison officials’ intentional failure to respond. Arguably, the lack of
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records could be expected in both cases. The Court finds that a
genuine issue of material fact exists as to whether the
administrative grievance process was available to Plaintiff during
the time period in question. Therefore, the Court must hold an
evidentiary hearing to resolve these issues. See Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008).
IT IS THEREFORE ORDERED:
1) Defendants’ Motion for Summary Judgment [41] is
DENIED.
2) An evidentiary hearing is scheduled for OCTOBER 22,
2015 at 9:30 a.m., at the U.S. Courthouse in Springfield,
Illinois, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008). Plaintiff shall appear in person. Plaintiff is not
currently in custody, therefore, no writ shall issue for his
appearance.
3) By September 24, 2015, the parties are directed to submit
a list of: 1) the documentary evidence they intend to
submit at the hearing; and, 2) the witnesses they intend to
call and the locations of those witnesses, if appearing by
video. For a nonparty witness, the list should also
summarize the expected testimony of that witness. The
parties are responsible for bringing their own documentary
evidence to the hearing. Plaintiff will present his case
first, followed by Defendants. Opening and closing
statements are optional.
4) Defendants filed a Motion to Dismiss [48] indicating that
Plaintiff refused to answer questions during his
deposition. According to the transcripts, Plaintiff refused
to answer questions regarding his allegations against
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Defendants Baker and Wexford Health Care because, as
Plaintiff put it, all his answers were in his Petition. See
Doc. 48-1 at 1-5. The fact that allegations are contained
in prior pleadings is not a proper objection. If Plaintiff
objects to the question, he may state his objection, but he
must still answer the question unless the information
sought is privileged. See Fed. R. Civ. P. 30(c)(2).
Defendants’ Motion to Dismiss and/or Motion for
Sanctions [48] is DENIED at this time. However, should
the Defendants choose to take Plaintiff’s deposition a
second time, the Plaintiff is directed to answer the
questions. If Plaintiff fails to do so, the Defendants may
renew their motion at that time, and the Court will
consider any sanction requested and available under the
Federal Rules of Civil Procedure, including dismissal of
Plaintiff’s case.
5) Plaintiff files a Motion for Reconsideration [26] seeking
reconsideration of the Court’s previous order denying
appointment of counsel. Plaintiff has made a reasonable
attempt obtain counsel. As stated in the Court’s text
order dated October 15, 2014, Plaintiff has personal
knowledge of the facts of this case and can testify
accordingly. Further, Plaintiff has since filed several
documents with the Court citing relevant legal authority
and effectively conveying his legal position to the Court.
Therefore, the Court finds that Plaintiff is competent to
litigate this case himself at this time. See Pruitt v. Mote,
503 F.3d 647, 654-55 (7th Cir. 2007). Plaintiff’s Motion
[26] is DENIED. Plaintiff, however, may renew his motion
to appoint counsel at a later time, if necessary.
6) Plaintiff’s Motion for Leave to File an Amended Complaint
[37] is DENIED. As stated in the Scheduling Order, the
proposed amended complaint must stand on its own.
Piecemeal amendments are not permitted. See Scheduling
Order [24], ¶ 2. In addition, the allegations Plaintiff seeks
to add constitute a different claim and should be filed in a
separate lawsuit. See George v. Smith, 507 F.3d 605, 607
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(7th Cir. 2007) (“Unrelated claims against different
defendants belong in different suits, not only to prevent
[confusion] but also to ensure that prisoners pay the
required filing fees” and comply with the Prisoner
Litigation Reform Act). Plaintiff’s Motion [37] is DENIED.
7) Defendants’ Motion for Extension of Time [32] is
GRANTED. The Court notes the relevant motions have
since been filed. Defendants’ Motion [40] is DENIED as
moot.
8) Plaintiff’s Motion to Withdraw Against Two Defendants
[27] is GRANTED. Case is dismissed against Defendants
Fessler and Worley. Clerk is directed to terminate these
defendants.
9) Plaintiff’s Motion for Order to Issue Subpoena [28] is
DENIED at this time. Plaintiff appears to have obtained
the records he sought via subpoena as he attached them
to a subsequent motion filed with the Court. See [37].
10) Defendants’ Motion for Extension of Time to File
Summary Judgment motions is GRANTED [49].
ENTERED:
June 29, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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