Gara v. Davis et al

Filing 76

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; re 73 Report and Recommendations, granting 53 Motion for Summary Judgment. Defendant C/O Kelly dismissed without prejudice. Signed by Judge Michael J. Reagan on 08/23/2012. (dkd )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAME GARA, #M03053,

)
)
Plaintiff,
)
)
v.
) Case No. 10-CV-0769-MJR-SCW
)
ROBERT KELLEY, TRACY PEEK, DR. )
WAHL
and
WEXFORD
HEALTH )
)
SOURCES, INC.,
Defendant.
MEMORANDUM AND ORDER
REAGAN, District Judge:
I. Introduction and Factual/Procedural Background
In October 2010, Rame Gara, an inmate incarcerated at
Pinckneyville Correctional Center in Pinckneyville, Illinois, filed suit for
deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983.
Liberally construed, Gara’s complaint alleges as follows.

Gara

was playing soccer in early May 2009 and injured his knee. He was carried
back into the building by two other inmates, in pain and unable to walk. C/O
Kelley denied Gara’s request to be taken to the Health Care Unit and instead
sent him back to his cell. Gara put in a sick call request and was seen three
days later by Tracy Peek, an LPN. Gara told Peek that he was in extreme
pain and showed her his badly swollen knee, but Peek only gave him a bag
to use for an ice pack. During the following year, Gara was seen at various
times by Doctors Obadina, Wahl and Gary who recommended or prescribed

such remedies as pain pills, physical therapy and a knee immobilizing
device.

An April 2010 MRI showed osteoarthritis, fluid, swelling of the

kneecap, a small tear of the medial meniscus and a probable tear of the
anterior cruciate ligament.
On preliminary review, the Court found that Gara had stated an
Eighth Amendment claim for deliberate indifference to serious medical needs
against Kelley, Peek, Obadina, Wahl and Wexford Health Sources, Inc. The
Court’s current analysis focuses on claims against Kelley. In answering the
complaint, Kelley raised the affirmative defense that Gara failed to exhaust
his administrative remedies as is required before filing suit under 42 U.S.C.
§ 1983 by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a)
(Doc. 43). On December 1, 2011, Kelley moved for summary judgment on
the issue of exhaustion (Doc. 53).
On July 13, 2012, Judge Williams submitted a Report and
Recommendation (“the Report”) pursuant to 28 U.S.C. § 636(b)(1)(B),
recommending that Kelley’s summary judgment motion be granted and that
Kelley be dismissed without prejudice as Defendant herein (Doc. 73). The
Report was sent to the parties with a notice informing them of their right to
appeal by way of filing “objections” within 14 days of service of the Report.
Gara filed a timely objection (Doc. 74).
Accordingly, the Court will undertake de novo review of the
portions of the Report to which specific objection was made. 28 U.S.C. §

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636(b)(1)(B); FED. R. CIV. P. 72(b); Southern District of Illinois Local
Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992).
The Court may accept, reject or modify the recommended decision, or
recommit the matter to the Magistrate Judge with instructions. FED. R. CIV.
P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902,
904 (7th Cir. 1999).
II. Standard for summary judgment
Summary

judgment

is

appropriate

where

the

pleadings,

discovery materials, and any affidavits show that there are no genuine
issues of material fact and that the moving party is entitled to judgment as a
matter of law.

Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir.

2010). In ruling on a summary judgment motion, the district court must
construe all facts in the light most favorable to, draw all legitimate
inferences in favor of, and resolve all doubts in favor of the non-moving
party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528
F.3d 508, 512 (7th Cir. 2008).

Accord Reget v. City of La Crosse,

595 F.3d 691 (7th Cir. 2010).
When the non-moving party bears the burden of proof, though,
he must demonstrate the existence of a genuine fact issue to defeat
summary judgment.

Reget, 595 F.3d at 695.

To survive summary

judgment, the non-movant must provide admissible evidence on which the

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jury or court could find in his favor. See Maclin v. SBC Ameritech, 520
F.3d 781, 786 (7th Cir. 2008).
In deciding a summary judgment motion, the court may not
evaluate the weight of the evidence, judge the credibility of witnesses, or
determine the truth of the matter.

The court’s only role is to determine

whether there is a genuine issue of triable fact. National Athletic, 528
F.3d at 512, citing Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439,
443 (7th Cir. 1994). As succinctly stated by the Seventh Circuit Court of
Appeals, “There is no genuine issue of material fact when no reasonable jury
could find in favor of the nonmoving party.”

Van Antwerp v. City of

Peoria, Illinois, 627 F.3d 295, 297 (7th Cir. 2010), quoting Brewer v.
Bd. of Trs. of the Univ. of Illinois, 479 F.3d 908, 915 (7th Cir. 2007).
Stated another way, summary judgment is the “put up or shut
up” moment in litigation – the point at which the non-movant must marshal
and present to the court the admissible evidence which he contends will
prove his case. Goodman v. National Security Agency, Inc., 621 F.3d
651, 654 (7th Cir. 2010) (citations omitted). With these principles in
mind, the Court turns to the motion in the instant case.
III. Analysis
With respect to the issue of exhaustion of remedies, 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
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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).
In Perez v. Wisconsin Department of Corrections, 182 F.3d
532 (7th Cir. 1999), the Court of Appeals for the Seventh Circuit held that
exhaustion of administrative remedies, while not jurisdictional per se, is a
“precondition” to suit, regardless of the apparent futility of pursuing an
administrative remedy, regardless of whether money damages are sought as
a tangential remedy and regardless of notions of judicial economy. Perez,
182 F.3d at 537. Exhaustion means that the prisoner has “complete[d] the
administrative process by following the rules the state has established for
that process.”
2002).

Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir.

“Any other approach ... would defeat the statutory objective of

requiring the prisoner to give the prison administration an opportunity to fix
the problem - or to reduce the damages and perhaps to shed light on factual
disputes that may arise in litigation even if the prison’s solution does not
fully satisfy the prisoner.”

Id. at 1023-24.

“Because failure to exhaust

administrative remedies is an affirmative defense, defendants have the
burden of pleading and proving the defense.”

Massey v. Helman, 196

F.3d 727, 735 (7th Cir. 2000).
The grievance procedures applicable to the Illinois Department of
Corrections are set forth in 20 Ill. Admin. Code §§ 504.800-504.850. To
be fully exhausted, a grievance must be pursued through the institutional

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system and ultimately be denied by the Administrative Review Board
(“ARB”).

Id.

The grievance procedure requires an inmate to provide

“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 or who is otherwise involved in the complaint.” § 504.810(b). If
an inmate does not know the name of an individual, he must include as
much descriptive information about the individual as possible. Id.
In Gara’s objection to the Report, he submits that the Health
Care Unit Administrator, the counselor, the grievance officer and the Chief
Administrative Officer, in their individual reviews, combined his April 2010
and May 2010 grievances and denied them on the merits without mentioning
any procedural defect.

The ARB, however, addressed each grievance

individually and rejected Gara’s first grievance as untimely because “it
mentions May 2009.”
Gara points out that district courts in the Seventh Circuit have
taken divergent paths when confronted with the issue of whether a
prisoner’s grievance is exhausted where every level of the administrative
process addresses the grievance on the merits except for the ARB.

In

Sylvester v. Chandler, 2010 WL 3420385 (N.D.Ill. 2010), the district
court granted summary judgment for the defendant in circumstances similar
to the instant case; that is, at the first levels of review, the grievance was
denied on the merits, but the ARB determined that the grievance was

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untimely, because it was filed over sixty days from the date of the plaintiff’s
injury.

2010 WL 3420385, at *2.

The opposite result was reached in

Escobedo v. Miller, 2009 WL 2605260 (C.D.Ill. 2009), where the
district court found that the ARB could not reject the appeal of the grievance
officer’s and chief administrative officer's decisions as untimely, where both
the grievance officer and the chief administrative officer had considered the
grievance on the merits.

2009 WL 2605260, at *5.

Neither Gara nor

Kelley has directed the Court’s attention to any Seventh Circuit precedent
directly on point, nor has the undersigned Judge discovered such a case
through his own research.
Having carefully considered the interplay among the PLRA, the
relevant provisions of the Illinois Administrative Code and case law, the
Court concludes that the better course is that identified in Sylvester and
recommended by Judge Williams: the ARB’s denial of an inmate’s grievance
on purely procedural grounds means that “the plaintiff has failed to exhaust
his administrative remedies, and so he must go back and exhaust.” Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
“This

circuit

has

taken

a

strict

compliance

approach

to

exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). If a
prisoner fails to properly use the prison's grievance process, “the prison
administrative authority can refuse to hear the case, and the prisoner's claim
can be indefinitely unexhausted.”

Id., citing Pozo, 286 F.3d at 1025

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(“To exhaust remedies, a prisoner must file complaints and appeals
in the place, and at the time, the prison's administrative rules
require.”).

“Section 1997e(a) requires ‘proper exhaustion’; that is, the

inmate must file a timely grievance utilizing the procedures and rules of the
state's prison grievance process.” Maddox v. Love, 655 F.3d 709, 72021 (7th Cir. 2011).
According the Illinois Administrative Code its plain meaning, the
Court finds no support for Gara’s contention that the first two levels of
review can tie the hands of the ARB such that it can only address a
grievance on its merits and not on procedural grounds. The Code does not
preclude the ARB from addressing timeliness or addressing individually
grievances that were combined below. Gara was injured in May 2009 and
his first grievance was filed in April 2010.

So, Gara’s grievance was not

“filed within 60 days after the discovery of the incident, occurrence, or
problem that gives rise to the grievance.”

See 20 Ill. Admin. Code §

504.810. And Gara has not demonstrated that his grievance was not timely
filed for good cause. Id.
In sum, Gara failed to file a timely grievance as the prison’s
administrative rules required.

Since Gara’s grievance was properly denied

solely on procedural grounds at the highest level of Illinois’s administrative
remedy process, he has not exhausted and may not proceed in federal court.
Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004) (“Just as courts

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may dismiss suits for failure to cooperate, so administrative bodies
may dismiss grievances for lack of cooperation; in either case this
procedural default blocks later attempts to litigate the merits.”).
Gara makes a second argument that an allegation of deliberate
indifference to serious medical need is a continuing violation and, as such,
Kelley’s untimeliness contention is frivolous.
As the Seventh Circuit explained in Heard v. Sheahan, 253
F.3d 318 (7th Cir. 2001), where a plaintiff charges that the defendants
inflicted cruel and unusual punishment on him by refusing to treat his
condition,
[t]his refusal continued for as long as the defendants had the
power to do something about his condition, which is to say until
he left the jail. Every day that they prolonged his agony by not
treating his painful condition marked a fresh infliction of
punishment that caused the statute of limitations to start
running anew. A series of wrongful acts creates a series of
claims. 253 F.3d at 318 (citations omitted).
While, clearly, failure to treat a medical condition may constitute a
continuing violation, Gara fails to demonstrate how this could conceivably
apply to Kelley. Kelley’s actions, at most, delayed Gara’s care for three days
in May 2009. The act was discrete, and there was no need for Gara to wait
approximately eleven months for an entire series of events to unfold before
filing his grievance.

Since there was no excuse for Gara’s delay, the

violation cannot be deemed “continuing.” See id. at 320.
IV. Conclusion

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Having conducted de novo review, the Court ADOPTS in its
entirety Judge Williams’ July 13, 2012, Report and Recommendation (Doc.
73), GRANTS Defendant Kelley’s motion for summary judgment (Doc. 53)
and DISMISSES without prejudice Gara’s claims against Kelley.

See

Ford, 362 F.ed at 401 (holding that “all dismissals under § 1997e(a)
should be without prejudice”) (emphasis in original).
The Court notes that this matter is set for final pretrial
conference on November 29, 2012, at 9:00 a.m., and jury trial on January
14, 2013, at 9:00 a.m.

Presently remaining for trial are Gara’s claims

against Tracy Peek, Dr. Wahl and Wexford Health Sources, Inc.
IT IS SO ORDERED.
DATED this 23rd day of August, 2012

s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

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