Johnson v. United States

Filing 104

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 12/27/2016: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court overrules defendants' exhaustion defense with regard to Count 2, Johnson's claim of denial of medical care. The case is set for a status hearing on January 5, 2017 at 9:30 a.m. in order to set a schedule for the remainder of discovery and pretrial proceedings. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVON JOHNSON,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 14 C 10461

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Javon Johnson has asserted claims against the United States under the Federal
Tort Claims Act, 28 U.S.C. § 1346(b)(1), and against several government employees
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Johnson's claims arise from his incarceration at the Chicago Metropolitan
Correctional Center (MCC). On May 3, 2014, another inmate attacked Johnson, striking
him across the face with a wooden push broom. Johnson suffered severe injuries to his
face and head. He was taken to the health services unit, where a nurse cleaned and
bandaged his wounds. Johnson was then taken to segregation. On May 19, 2014,
medical staff took x-rays of Johnson's head and sent him to Thorek Memorial Hospital.
At the hospital, a CT scan revealed three fractures to bones in Johnson's face.
In count two of his complaint, Johnson asserts a claim that MCC personnel were
deliberately indifferent to his medical needs. He essentially claims that treatment was
unreasonably delayed or denied between May 3 and May 19, 2014. Defendants argue

that Johnson failed to exhaust prison grievance remedies with regard to this claim,
contrary to the requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
The Court denied their motion for summary judgment due to significant factual disputes
but ordered an evidentiary hearing under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
The hearing was conducted in late October 2016. This constitutes the Court's findings
of fact and conclusions of law.
On May 3, 2014, the day of the attack, correctional staff at the MCC took
Johnson to the health care unit. He was seen by a nurse named Alex Folami and told
Folami about his facial pain, indicating that he thought his jaw might be broken. No xrays were taken. Johnson was prescribed ibuprofen. He was then placed in a
segregation unit at the MCC.
The next time that Johnson was examined by medical personnel at the MCC for
his facial injuries appears to have been on May 15, 2014, when he was examined at the
segregation unit by a nurse named Kistler and was prescribed additional pain
medication. Either as a result of that visit or via some other mechanism, Johnson was
examined by Dr. Brij Mohan at the medical unit on May 19, 2014. An x-ray was taken
and showed a left zygomatic arch fracture. For this reason and because of the
symptoms that Johnson reported, he was sent to the emergency room at Thorek
Hospital.
Johnson's deliberate indifference claim focuses on the period from May 3 through
May 19, a total of sixteen days. He alleges that correctional and medical staff were
deliberately indifferent to his need for further medical care during this period.
Specifically, in a memorandum filed prior to the Pavey hearing, Johnson said he is

2

"willing to agree that the gravamen of his Bivens case as to medical treatment is the
deliberate indifference occurring on May 3, 2014 and continuing until his ultimate
referral to Thorek Hospital on May 19, 2014 when his factual fractures were diagnosed
after they had improperly healed." Pl.'s Mot. for Prehr'g Conf. ¶ 4.
At the hearing, Johnson testified that on May 4, the day after the attack, he still
had significant pain, so he began to ask for additional medical attention. He did not
know the nature of his injuries and did not know what type of further treatment he
needed. He also testified that he made repeated oral requests to correctional staff for
additional medical care. Johnson testified that he was told he had to talk to medical
staff; he asked correctional staff to contact medical staff on his behalf; and he was later
told by correctional staff that he would have to fill out a sick call slip. Finally, Johnson
testified that over the period at issue, he filled out several sick call slips complaining
about his facial pain and asking to see a doctor. The Court found Johnson's testimony
on these points to be credible.
Johnson testified that on May 8, a medical doctor, Dr. Mohan, came through the
segregation unit. Johnson spoke with Dr. Mohan through the chuckhole on his cell door
and, he says, told Dr. Mohan about his facial pain. Dr. Mohan, Johnson says, took no
action. The Court found this testimony credible.
There is no record of Johnson submitting any written grievances (as contrasted
with sick call slips) between May 4 and May 16 regarding the delay or denial of followup medical treatment for his facial injuries. During this period, Johnson submitted
grievance forms on other subjects, including one on May 6 objecting to being written up
for the May 3 fight and asking to press charges and another on May 14 seeking further

3

medical care for an earlier knee injury. Johnson testified that on May 16, he asked a
counselor for additional grievance forms and submitted on that date a grievance
regarding the denial of medical care for his facial injuries. There is no record of such a
grievance having been submitted, and defendants deny that Johnson submitted one.
The Court need not resolve this conflict in the evidence for the reasons described
below.
Defendants argue that Johnson failed to exhaust administrative remedies
regarding his claim for denial or delay of medical care for his facial injuries because he
never even submitted a grievance, let alone pursue it to conclusion. They seek
dismissal of Johnson's medical care claim on this basis. In response, Johnson relies on
the Seventh Circuit's decision in White v. Bukowski, 800 F.3d 392 (7th Cir. 2015). The
plaintiff in White alleged deliberate indifference to her need for prenatal care and for
prompt transport to a hospital to deliver her baby while she was in temporary custody at
a county jail. She arrived at the hospital about eight months pregnant. After being at
the jail for eleven days, the plaintiff experienced pain and was transported to a hospital,
where she gave birth. The child suffered serious birth defects, allegedly due to oxygen
deprivation caused by displacement of the placenta. The plaintiff contended that if the
defendants had taken a proper medical history when she first arrived at the jail and had
promptly responded to her requests for medical assistance, she would have received
appropriate medical treatment sooner and the injury to her child would not have
occurred. See id. at 393-94. Defendants sought dismissal due to failure to exhaust. In
response, the plaintiff contended that there were no grievance remedies were available
at the relevant time. The Seventh Circuit agreed. The court noted that under the PLRA,

4

a plaintiff must exhaust "such administrative remedies as are available." Id. at 395
(quoting 42 U.S.C. § 1997e(a)) (emphasis added). It cited the following as an example
of unavailability:
"Suppose the prisoner breaks his leg and claims delay in setting the bone
is cruel and unusual punishment. If the injury has healed by the time suit
begins, nothing other than damages could be a 'remedy,' and if the
administrative process cannot provide compensation then there is no
administrative remedy to exhaust."
Id. (quoting Perez v. Wis. Dep't of Corr., 182 F.3d 532, 538 (7th Cir. 1999)). With
regard to the plaintiff in White, the court stated:
[H]ow could a prisoner be expected to file a grievance that would be
academic because no response would benefit him or her in the slightest?
Yet that appears to be the situation of the plaintiff in this case even more
clearly than that of the prisoner in the hypothetical case discussed in
Perez v. Wisconsin Department of Corrections, supra. In short, if one has
no remedy, one has no duty to exhaust remedies.
Id. The court specifically rejected decisions from other circuits holding that "even if the
jail or prison can do nothing whatever for the complaining prisoner, and even if that's
obvious to a prisoner who not unreasonable believes himself to be a victim of deliberate
indifference . . .—the prisoner must file a grievance if he is to preserve his right to sue."
Id.
Johnson contends, like the plaintiff in White, that given the short amount of time
that passed from the date of his physical injury (May 3) until the date he was examined
by a physician and given an x-ray (May 19), he "could not have known that his facial
fractures existed, of his options for treatment, and that if not treated they would become
permanent." Pl.'s Motion for Prehr'g Conf. ¶ 2. He contends that the MCC's grievance
procedures "would not have been sufficient to prevent the harm done by delay in
treatment and diagnosis" due to the short time interval involved. Id. ¶ 3.
5

The time interval is, indeed, short. And although Johnson—like the plaintiff in
White—subjectively believed he needed further treatment, and believed (incorrectly, it
turns out) that his jaw was broken, he testified, credibly, that he repeatedly asked for
additional medical treatment starting on May 4. That was the appropriate first step for
Johnson to follow. He testified, again credibly, that correctional staff reported back to
him that he had to submit a sick call form and that he then did so; this was the
appropriate next step. Johnson's claim for denial or delay in medical treatment did not
ripen until it became apparent that his written requests for further medical treatment—
the hoop that prison staff told him he had to jump through—were being ignored. This
would not have been, at a minimum, until a number of days after May 4. It was only
then that any obligation to initiate administrative remedies even arose. Indeed, during
closing argument following the Pavey hearing, in response to a question by the Court,
defense counsel conceded that if Johnson had filed a grievance by May 16, that would
have been timely. But May 16, 2014 was a Friday, and the next weekday, May 19,
2014, was the day that Johnson actually saw Dr. Mohan and was x-rayed. It appears
that by this point—likely due to his examination by nurse Kistler on Thursday, May 15—
Johnson's repeated requests for further medical treatment had actually borne fruit. But
by then (May 19), Johnson contends, the damage had been done.
In short, by the time Johnson was obliged to begin pursuing the MCC's grievance
procedures, there is no basis in the record to find that it would have benefitted him—i.e.,
that it would have gotten him a physician visit and an x-ray any earlier than he actually
got them on Monday, May 19. For this reason, as in the White case, there were no
administrative remedies that were "available" to Johnson at the relevant time that had

6

any hope of providing him with relief.
For these reasons, the Court overrules defendants' exhaustion defense with
regard to Count 2, Johnson's claim of denial of medical care. The case is set for a
status hearing on January 5, 2017 at 9:30 a.m. in order to set a schedule for the
remainder of discovery and pretrial proceedings.

Date: December 27, 2016

________________________________
MATTHEW F. KENNELLY
United States District Judge

7