Thomas v. Fuentes et al

Filing 103

ORDER ADOPTING 99 REPORT AND RECOMMENDATION ; GRANTING 66 MOTION for Summary Judgment filed by Deana Medford, Mary Ann Kohring, Dr. Fuentes, Dr Feinerman, 45 MOTION to Dismiss filed by Deana Medford, Mary Ann Kohring, Dr. Fuentes, Dr Feinerman, 64 MOTION for Summary Judgment filed by Derek Flatt, Chard Todaro. Terminating Defendants Deana Medford, Mary Ann Kohring, Dr. Fuentes, Dr Feinerman, Derek Flatt, Chard Todaro. Signed by Judge Michael J. Reagan on 2/22/2012. (mmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
Plaintiff,
)
)
vs.
)
DR. FUENTES, DR. FEINERMAN, )
STEPHEN
PLATT,
MARY
ANN )
KOHRING, DEANA MEDFORD, CHAD )
)
TODARO, and DEREK FLATT,
)
)
Defendants.
MICHAEL THOMAS, Inmate #B-71744,

CASE NO. 10-cv-0902-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, District Judge:
1. Introduction
Plaintiff Michael Thomas, an inmate in the custody of the Illinois Department of
Corrections, filed his Complaint (Doc. 1) on November 10, 2010, pursuant to 42 U.S.C. § 1983,
alleging that the Defendants were deliberately indifferent to his serious medical needs in violation
of the Eighth Amendment. More specifically, Thomas alleges that on February 10, 2009, while
he was housed at Menard Correctional Center, he fell while playing basketball and injured his left
ankle and Defendants, Dr. Fuentes, Dr. Feinerman, Dr. Stephen Platt, Deana Medford, Chard
Todaro, and Derek Flatt, failed to properly diagnose and treat his injury, and refused to move him
to a lower gallery, despite Plaintiff’s obvious difficulties walking.

According to Plaintiff

Thomas, it was not until early 2010, after he was transferred to Hill Correctional Center, that he
was diagnosed with a broken ankle and joint damage.
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Pursuant to 28 U.S.C. § 636(b)(1)(C), the Report and Recommendation of United
States Magistrate Judge Stephen C. Williams regarding Defendants Feinerman, Fuentes, Kohring
and Medford’s Motion to Dismiss (Doc. 45) and Motion for Summary Judgment (Doc. 66), and
Defendants Flatt and Todaro’s Motion for Summary Judgment (Doc. 64) is before the Court (Doc.
99). Also before the Court is Plaintiff Thomas’s Objections to the Report and Recommendation
(Doc. 101), as well as Defendants Flatt and Todaro’s Response (Doc. 102).
Magistrate Judge Williams recommends that that Defendants’ motions be granted
and all claims against them be dismissed without prejudice, due to Plaintiff’s failure to exhaust
administrative remedies before filing suit, as required by 42 U.S.C. § 1997e(a). Plaintiff Thomas
objects that Judge Williams’s conclusions are clearly erroneous and contrary to law. Plaintiff
presents two principal arguments. First, Thomas argues that it was error for Judge Williams to
conclude that Plaintiff’s March 25 and October 18, 2009, grievances were never filed. Second,
that it was error for Judge Williams to require Plaintiff’s grievances to specifically identify the
Defendants in his grievance(s).
2. Applicable Legal Standards
Plaintiff Thomas has objected to the Report and Recommendation; accordingly, the
Court will undertake de novo review of the portions of the Report to which specific objection was
made. 28 U.S.C. § 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,
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904 (7th Cir. 1999).
Defendants have moved for dismissal and for summary judgment, asserting that
Plaintiff Thomas failed to exhaust administrative remedies before filing suit, as required by 42
U.S.C. § 1997e(a). See Docs. 45, 46, 64, 65, 66, 67. As a procedural matter, Defendants cite
Federal Rules of Civil Procedure 12(b)(6) and 56.

However, analysis of the exhaustion

requirement is governed by unique procedures.
The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners to exhaust
administrative remedies before filing suit in federal court. That requirement applies to all suits
challenging prison conditions under 42 U.S.C. § 1983, as well as actions under “any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(a).
Exhaustion of administrative remedies under the PLRA is a condition precedent to suit in federal
court. Dixon v. Page, 291 F.3d 485, 490 (7th Cir. 2002). The law of this Circuit establishes that the
inmate must comply with the rules and procedures governing grievances in the particular
institution of incarceration, including any time limitations and all steps in a multi-step grievance
process.
To properly exhaust remedies within the meaning of the PLRA, the inmate “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). See also Burrell v. Powers, 431 F.3d
282, 284 (7th Cir. 2005).

If administrative remedies are not properly exhausted prior to

commencement of the federal lawsuit, the district court must dismiss the suit (or any claims not

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fully exhausted). Burrell, 431 F.3d at 285; Jones v. Bock, 549 U.S. 199, 201 (2007).1 The
IDOC’s three-stage administrative process for resolving inmate grievances is delineated in 20 Ill.
Admin. Code Section 504.810.

The inmate is required to follow the sequential process,

concluding with an appeal in writing to the Director of the IDOC, by way of the Administrative
Review Board (ARB). See 20 Ill. Admin. Code §§ 504.810, 504.830, 504.850.
Failure to exhaust administrative remedies is an affirmative defense; the defendant
correctional officials have the burden of proving that the inmate had available remedies that he did
not utilize. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Dale v. Lappin, 376
F.3d 652, 655 (7th Cir. 2004). A remedy is “available” if the administrative procedure can lead to
some relief, even if it is not the precise relief the inmate wants. See Booth v. Churner, 532 U.S.
731, 741 n. 6 (2001); Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir. 2001). “Prison officials may
not take unfair advantage of the exhaustion requirement . . . and a remedy becomes ‘unavailable’ if
prison employees do not respond to a properly filed grievance or otherwise use affirmative
misconduct to prevent a prisoner from exhausting.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006) (emphasis added) (citing Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); and Dale
v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
In Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Seventh Circuit delineated a
three-step process for cases in which exhaustion is contested.
(1) The district judge conducts a hearing on exhaustion and permits
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Dismissal is without prejudice to initiating another action, if appropriate, after all remedies have
been exhausted. Burrell, 431 F.3d at 285, citing Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002) (“Dismissal for failure to exhaust is without prejudice ....”), and Ford v. Johnson, 362 F.3d
395, 401 (7th Cir. 2004) (“all dismissals under § 1997e(a) should be without prejudice”). Accord
Barnes v. Briley, 420 F.3d 673, 676 (7th Cir. 2005).
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whatever discovery relating to exhaustion he deems appropriate. (2) If the
judge determines that the prisoner did not exhaust his administrative
remedies, the judge will then determine whether (a) the plaintiff has failed
to exhaust his administrative remedies, and so he must go back and exhaust;
(b) or, although he has no unexhausted administrative remedies, the failure
to exhaust was innocent (as where prison officials prevent a prisoner from
exhausting his remedies), and so he must be given another chance to
exhaust (provided that there exist remedies that he will be permitted by the
prison authorities to exhaust, so that he's not just being given a runaround);
or (c) the failure to exhaust was the prisoner's fault, in which event the case
is over. (3) If and when the judge determines that the prisoner has properly
exhausted his administrative remedies, the case will proceed to pretrial
discovery, and if necessary a trial, on the merits; and if there is a jury trial,
the jury will make all necessary findings of fact without being bound by (or
even informed of) any of the findings made by the district judge in
determining that the prisoner had exhausted his administrative remedies.
Id. at 742.

1

Typically, when deciding a motion to dismiss or for summary judgment, all facts
are construed in the light most favorable to, and all legitimate inferences are drawn in favor of, the
non-moving party. See Regent v. City of LaCrosse, 595 F.3d 691, 695 (7th Cir. 2010). However,
when ruling on the exhaustion issue, the Court may make credibility determinations and findings
of fact. See Pavey v. Conley, 663 F.3d 899, 904-905 (7th Cir. 2011) (citing Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is based on his
decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent
and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.’”)).
3. Analysis
On October 5, 2011, Magistrate Judge Williams conducted an evidentiary hearing
1

In accordance with 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Williams was designated to
conduct the Pavey hearing and issue a Report and Recommendation.
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in accordance with Pavey. See Doc. 96 (Transcript). Plaintiff Thomas does not specifically take
issue with the recitation of the evidence and issues presented in the Report, although he would
have the Court consider certain evidence and arguments rejected by Magistrate Judge Williams.
Rather, Thomas takes issue with the credibility determinations made by Magistrate Judge
Williams. Therefore, the recitation of facts set forth in the Report is repeated here and shall serve
as a starting place for analysis, in order to place the issues in context.
At issue are four grievances Plaintiff claims he filed in
regards to injuries he received to his ankle in February of 2009. Plaintiff
claims that after he received treatment on February 11, 2009, he first
submitted a grievance in regards to his medical treatment on March 25,
2009 which was never returned to him. Plaintiff also claims to have filed
another grievance on the same issue in October of that year and then two
more grievances in 2010, one on April 21, 2010 and one on June 29, 2010.
The only grievances received by the ARB were the April 21, 2010 and June
29, 2010; however, the June 29, 2010 was ultimately rejected because it did
not include the grievance officer’s and chief administrative officer’s
responses. There appears to be no record with either the ARB or Menard
Correctional Center regarding his grievances allegedly filed in March and
October of 2009.2
At the hearing, Plaintiff contended, under oath that he
submitted his March 25, 2009 grievance to the cellhouse grievance box
located at the entrance to east cell block. He also maintained that he
followed the same procedure for his October 18, 2009 grievance he
allegedly filed and filed that one because he had never received a response
on his March 2009 grievance. Both grievances were attached to his
Complaint, although the officer and CAO responses were blank. He also
stated that he was aware of the grievance procedure at Menard, but that he
believes he followed the procedure and did all he could as he had no control
of what happens to the grievances once he places them in the grievance box.
As to the grievance dated March 25, 2009, Plaintiff
acknowledged that it did not include the names of Defendants Flatt and
Todero but he recalled that it discussed the staff of Menard in general. As to
Defendants Fenierman, Fe Fuentes, Mary Ann Kohring, and Deana
Medord, he stated that he did not include their names in either grievance
because he did not know their names at the time and did not discover their
2

The April 21, 2010, grievance will be analyzed anew, as this Court views it in a different
procedural posture than is reflected in the Report and Recommendation.
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names until he obtained his medical records sometime the following year.
He did not recall any specific dates that he met with any of the Defendants
from the health care unit and instead stated that he relied on the medical
records in order to list those names. Plaintiff also stated that he had
previously been disciplined for trying to learn guards and other potential
Defendants’ names.
Neal Schwarz, a correctional counselor at Menard
Correctional Center, also testified regarding the grievances allegedly
deposited in March and October. As part of his job, Schwarz not only
retrieves, reads, and handles grievances filed by inmates, but also meets
with inmates on a regular sixty (60) day basis to discuss concerns and
grievances the inmates have with the institution. After each meeting he
prepares contact notes of the visits in order to memorialize the issues
discussed with the prisoners. During the time frame at issue in this case,
Schwarz served as a correctional counselor for East cellhouse, the cellhouse
where Plaintiff was housed during most of his stay at Menard. Grievances,
as Schwarz confirmed, are deposited in a mailbox at the entrance of each
cell house, but can also be placed in the bars for the guards to pick up and
deliver, or handed directly to the correctional counselor during his regular
visits with the inmates. Only the correctional counselor and the lieutenant
have keys to the mailbox although the correctional counselor normally
retrieves the grievances from the mailbox. Schwarz kept records of all the
grievances he received and meetings with inmates in a cumulative
counseling summary (Ex. 1) which was kept for each inmate including
Plaintiff.
Schwarz reviewed his notes in Plaintiff’s cumulative
counseling summary (Ex. 1) from the time period at issue and informed the
Court that during the month of April and October there were no notations
regarding any lost grievances from Plaintiff. While Schwarz did note a
grievance was filed in October, that grievance dealt solely with loss of good
time credit. Schwarz also noted two grievances filed in March, but neither
of those dealt with medical issues. There were no grievances on record for
the months at issue regarding medical treatment of Plaintiff’s ankle, nor
were there any notations in Schwarz’s counselor notes regarding lost or
unanswered grievances.
Schwarz testified that while he had never seen a grievance
log or the codes that the grievance officers use to code the type of
grievances received, he was generally familiar with the type of grievances
filed by inmates. Reviewing the grievance log previously submitted by
Defendants (Doc. 67 Ex. C) for May 2009 and the grievance code (Ex. 2),
Schwarz testified that grievances filed by Plaintiff in May with the
grievance counselors related to discipline procedures and the performance
and duties of staff. Neither of the grievances filed with the grievance officer
in May 2009 related to medical treatment or any injuries he received while
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at Menard. Schwarz did acknowledge that Plaintiff knew how the grievance
system worked at Menard and that the number of grievances he filed during
this time there was evidence that Plaintiff knew how to use the grievance
system.
Doc. 99, pp. 3-5 (footnotes omitted).
Magistrate Judge Williams concluded that, despite Plaintiff Thomas’s assertions to
the contrary, he, Thomas, did not file grievances on March 25, 2009, and October 18, 2009.
Judge Williams further concluded that the April 21, 2010, grievance was untimely, even though it
proceeded through all stages of the administrative process. See Doc. 67-4, pp. 5-7; Doc. 80-1, pp.
18-20). Judge Williams found Plaintiff’s June 29, 2010, grievance to have been procedurally
defaulted, in that the Administrative Review Board (the final step in the exhaustion process)
rejected the grievance because it did not include the counselor’s response or the responses of the
Grievance Officer or Chief Administrative Officer, as required. See Doc.67-4, p. 9; Doc. 80-1,
pp. 4-5.
If none of Plaintiff’s four grievances has been exhausted, and administrative
remedies have not been rendered “unavailable,” then none of the claims against the Defendants
can proceed. Consequently, this Court’s analysis begins with the four grievances.
a.

June 29, 2010

Plaintiff Thomas does not object to Magistrate Judge Williams’s conclusion that
the June 29, 2010, grievance was not exhausted; therefore the Court will adopt that aspect of the
Report.
b.

April 21, 2010

Plaintiff does not specifically object to Magistrate Judge Williams’s conclusion
that, although the April 21, 2010, grievance proceeded through all stages of the administrative
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process, it was not filed within 60 days of the events at issue and, therefore, was untimely. See
Doc. 99, p. 9 n. 3; and 20 Ill. Admin. Code § 504.810(a). However, that legal conclusion is
incorrect. Consideration and resolution (on the merits) of an untimely grievance will not be
second-guessed by the federal judiciary. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
The Administrative Review Board did not reject the grievance as untimely; instead, the Board
ruled on the merits of the grievance. See Doc. 67-4, p. 5. Nevertheless, that does not help
Plaintiff.
A reasonable reading of the April 21 grievance (Doc. 67-4, p. 7) reveals that it does
not present a recognizable grievance regarding the allegedly inadequate medical treatment
Plaintiff received at Menard -- regardless of the fact that Defendants Feinerman, Fuentes, Kohring
and Medford are not mentioned by name. The grievance was filed while Plaintiff was housed at
Hill Correctional Center in Galesburg, Illinois, and it indicates that it pertains to “Medical
Treatment” at “Galesburg and Menard.” The grievance explains that Plaintiff was seen by
medical personnel at Hill on April 14, 2010, regarding the ankle injury he incurred at Menard in
2009. The doctors at Hill told Plaintiff that, due to the age of his injury, there was little or nothing
that could be done to help improve his pain and discomfort. In the grievance Plaintiff states, “I
don’t believe that my ankle was treated properly at Menard and I’d like to have my ankle . . . better
with any recovery technological device because I don’t want to keep being ‘susceptible’ to pain
and discomfort.” The grievance requests “a thorough examination of [his] ankle with necessary
technological devices,” and “to have pain and discomfort improved.” Plaintiff’s grievance was
construed by Hill officials and the Administrative Review Board as a request for current treatment,
which those prison officials concluded had been adequate. This Court also fails to perceive that
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Plaintiff was attempting to grieve the medical care provided at Menard. The reference to Menard
is merely historical. Therefore, the April 21, 2010, grievance cannot be found to satisfy the
exhaustion requirement relative to the medical claims against Defendants Feinerman, Fuentes,
Kohring and Medford. The grievance makes no mention of the gallery placement issue relative to
Defendants Flatt and Todaro.
c.

March 25 and October 18, 2009

Magistrate Judge Williams found substantial evidence that the March 25 and
October 18, 2009, grievances were never filed. Although Plaintiff had testified that he did file the
grievances3, Judge Williams did not make a specific finding that Plaintiff was not credible, but he
implicity did so. In any event, this Court has reviewed the record evidence anew and reaches the
same conclusion. Again, it must be noted that the Court may “credit the testimony of one of two
or more witnesses, each of whom has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575
(1985).
Plaintiff’s counselor, Neal Schwarz, is the first step in the grievance process.
Schwartz testified that he never received the grievances, his counseling summary notes did not
reflect any such grievances, nor did his notes reflect grievances regarding the loss of, or failure to
respond to, March 25 and October 18, 2009, grievances about the issues in this case. See Docs.
Doc. 96, pp. 29-32 (Schwartz’s Hearing Testimony); Doc. 67-3 (Menard Grievance Log). It is
telling that Plaintiff Thomas had lodged other grievances during the relevant time period, and he
3

Plaintiff also objects that Judge Williams did not discuss the affidavit of inmate Anthony
Hamilton (Doc. 80-1, pp. 6-7), which states that, as a general matter, when Hamilton was housed at
Menard grievances went unanswered. Hamilton’s affidavit does not specifically address the
grievances at issue and, therefore, it does little to bolster Plaintiff’s position.
10

had complained about other lost or unanswered grievances, but he did not mention to his counselor
any problem regarding the March 25 and October 18 grievances. Although Plaintiff did mention
in his June 29, 2010, grievance that he had filed grievances regarding his ankle which went
unanswered (without mention of gallery placement), hi waiting so long raises doubts. See Doc.
80-1, pp. 4-5. Plaintiff correctly observes that he is not required to resubmit grievances, but these
small bits of circumstantial evidence add up. This Court also considers the fact that Magistrate
Williams heard all of the testimony, as opposed to this Court’s review of the dry record; therefore,
his credibility determinations are given some weight. When viewing the evidence as a whole, the
Court gives greater weight to Mr. Schwartz’s testimony, as opposed to Plaintiff’s, because
Schwartz’s assertion that he did not receive the two grievances is further bolstered by his practices
and records. In contrast, there is little or nothing to bolster Plaintiff’s assertion that he did file the
grievances, which is undercut as already discussed. Therefore, this Court finds that Plaintiff
Thomas did not file his March 25 and October 18, 2009, grievances. Defendants have met their
evidentiary burden.
Having concluded that the March 25 and October 18, 2009, grievances were never
filed, the Court need not delve into Plaintiff’s arguments that he had been provided with an old,
incorrect copy of the grievance requirements and had not been informed that amended rules
required him to identify the involved prison officials by name or description.
4.

Conclusion

For the reasons stated, the Court ADOPTS Magistrate Judge Williams’s Report
and Recommendation (Doc. 99) except as specifically noted, and GRANTS Defendants
Feinerman, Fuentes, Kohring and Medford’s Motion to Dismiss (Doc. 45) and Motion for
11

Summary Judgment (Doc. 66), and Defendants Flatt and Todaro’s Motion for Summary Judgment
(Doc. 64). Accordingly, all claims against Defendants Feinerman, Fuentes, Kohring Medford,
Flatt and Todaro are DIMISSED, without prejudice. The Court will not formally enter final
judgment against Plaintiff and in favor of those defendants until all claims against all Defendants
are resolved.
Defendant Dr. Platt did not join in the motions to dismiss and for summary
judgment regarding exhaustion. Therefore, Plaintiff Thomas’s Eight Amendment claim against
Dr. Platt shall proceed.

IT IS SO ORDERED.
DATED: February 22, 2012
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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