Poole v. Duncan et al

Filing 56

ORDER OVERRULING 49 Objection to Report and Recommendations filed by DeMarco Poole, ADOPTING 46 REPORT AND RECOMMENDATIONS, and GRANTING 33 MOTION for Summary Judgment For Failure to Exhaust Administrative Remedies filed by Defendant John Coe. This case is DISMISSED without prejudice. Signed by Judge Nancy J. Rosenstengel on 11/4/15. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMARCO POOLE,
Plaintiff,
vs.
JOHN COE and UNKNOWN NURSE,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 14-CV-1094-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 46), which recommends granting the Motion
for Summary Judgment on the issue of exhaustion filed on July 22, 2015, by Defendant John
Coe (Doc. 33). Plaintiff filed a timely objection to the Report and Recommendation (Doc. 49).
The Court has carefully reviewed the briefs and exhibits submitted by the parties, as well as
Magistrate Judge Wilkerson’s Report and Recommendation. For the reasons stated below,
the Court overrules Plaintiff’s objection and adopts the Report and Recommendation.
BACKGROUND
Plaintiff Demarco Poole is an inmate in the custody of the Illinois Department of
Corrections at the Sangamon County Jail. He filed this lawsuit on October 9, 2014, regarding
events that occurred while he was housed at Lawrence Correctional Center. Plaintiff alleges
that he noticed a cyst on the side of his face on March 29, 2014. By July, the cyst began
growing and causing headaches and pain on the left side of his face. He was examined by an
unknown nurse, who referred him to Defendant John Coe, a physician at Lawrence. Dr. Coe

Page 1 of 7

told Plaintiff to use hot water compresses on the cyst; he did not prescribe any medication
for pain. Plaintiff returned for care a few weeks later because the cyst had doubled in size
and his symptoms had worsened. Dr. Coe informed Plaintiff that the cyst may be a sign of
cancer but otherwise took no action to treat the condition. Plaintiff was examined again by
Dr. Coe again in September 2014. Dr. Coe prescribed pain medication but took no other
action.
Dr. Coe moved for summary judgment on July 22, 2015, arguing that Plaintiff failed
to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42
U.S.C. § 1997(e) (Doc. 33). Plaintiff filed his response in opposition to the motion for
summary judgment on August 3, 2015 (Doc. 38). As required by Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on the issue of
exhaustion on September 17, 2015 (Doc. 50). Following the Pavey hearing, Magistrate Judge
Wilkerson issued the Report and Recommendation currently before the Court (Doc. 46). As
noted above, Plaintiff filed a timely objection to the Report and Recommendation (Doc. 77).
THE REPORT AND RECOMMENDATION
Magistrate Judge Wilkerson found that after Plaintiff discovered the cyst on his face
in March 2014, Plaintiff submitted eight grievances. Only one of those grievances was
related to the medical issue that is the subject of this lawsuit. It was filed as an emergency
grievance and dated October 2, 2014 (Doc. 34-1, pp. 32–33). The grievance did not contain a
response from a counselor or the Warden (see id.). The ARB received the grievance on
December 1, 2014 (Id. at p. 31). The ARB indicated that it would not address the grievance
because it had been submitted more than sixty days after the incident (Id.).

Page 2 of 7

Plaintiff also testified at the Pavey hearing that he submitted two grievances in June
2014, related to the medical issue at hand (Doc. 46, p. 4). Specifically, he testified that he
began seeking medical care for the cyst in March 2014, by sending requests to the Healthcare
Unit (Id.). When those went unanswered, he asked for grievance forms from Lieutenant
Dallas and an unknown wing officer (Id.). He then filed two grievances in June 2014, by
giving them to an unknown officer who picked up mail in segregation (Id.). When those two
grievances went unanswered, Plaintiff mailed the October 2, 2014, grievance directly to the
ARB (Id.). Plaintiff did not follow up on the June 2014 grievances because he was being
moved around a lot and because there was “a lot going on” at the time (Id.).
Magistrate Judge Wilkerson concluded that the October 2, 2014, grievance was not
sufficient for Plaintiff to exhaust his administrative remedies (Doc. 46, p. 8). This grievance
was filed only seven days before Plaintiff filed this lawsuit (Id.). He submitted it directly to
the ARB even though he did not meet any of criteria for doing so (Id.). See ILL. ADMIN. CODE
TIT. 20, § 504.870. Instead, his emergency grievance should have been submitted to the
Warden of Lawrence. Id. at § 504.840.
Magistrate Judge Wilkerson also made a finding that Plaintiff was not credible in his
assertions that he submitted two grievances in June 2014 and that he was denied grievance
forms (Doc. 46, p. 4). In support of this finding, Magistrate Judge Wilkerson noted that
Plaintiff had filed numerous grievances during the relevant time period, which
demonstrates he had access to the grievance process (Id.). Additionally, none of Plaintiffs
grievances, including the October 2nd grievance, mentions any unanswered grievances (Id.).
Plaintiff also did not mention the June 2014 grievances in his response to the Motion for
Summary Judgment (Id.).

Page 3 of 7

Consequently, Magistrate Judge Wilkerson recommended granting Dr. Coe’s motion
for summary judgment and dismissing Plaintiff’s claims against him without prejudice
(Doc. 46, p. 8). Magistrate Judge Wilkerson also recommended granting summary judgment
under Rule 56(f) against the only other Defendant, Unknown Nurse, even though she did
not move for summary judgment (Id.). Magistrate Judge Wilkerson reasoned that Plaintiff
submitted only one grievance related to the allegations in his complaint—the October 2nd
grievance—and if it was insufficient to exhaust his administrative remedies against Dr. Coe,
it was also insufficient with respect to the Unknown Nurse (Id.).
DISCUSSION
Where timely objections are filed, the undersigned must undertake a de novo review
of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);
SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also
Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires the district judge
to “give fresh consideration to those issues to which specific objections have been made”
and make a decision “based on an independent review of the evidence and arguments
without giving any presumptive weight to the magistrate judge’s conclusion.” Harper, 824
F.Supp. at 788 (citing 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at
p. 55 (1st ed. 1973) (1992 Pocket Part)); Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir.
2013). For the issues to which no objections have been made, the Court will review the
Report and Recommendation for clear error. Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999). The Court “may accept, reject or modify the magistrate judge’s
recommended decision.” Harper, 824 F. Supp. at 788.
Plaintiff essentially makes four objections. First, he claims that he submitted an

Page 4 of 7

emergency grievance on March 29, 2014, the day he discovered the cyst (Doc. 49). As far as
the Court can tell, this is the first time Plaintiff has ever mentioned this alleged grievance.
Plaintiff does not, however, offer any evidence of the grievance or provide any specifics
about it, such as when it was picked up and by whom, what it said, whether he received a
response, etc. Without something more, it appears that Plaintiff’s argument is based on a
last-ditch effort to save his claim rather than events that actually transpired. The Court
cannot simply accept Plaintiff’s vague assertion that a grievance was filed.
Second, Plaintiff speculates that there are notes in his medical records about his
requests for treatment for the cyst (Doc. 49). Even if that is true, nothing in the
administrative rules even remotely suggests that a request for treatment is sufficient to
exhaust administrative remedies. See ILL. ADMIN. CODE. TIT. 20 §§ 504.810, 504.850 (describing
procedures for filing grievances); see also Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002) (“To exhaust remedies, a prisoner must file complaints and appeals in the place, and at
the time, the prison's administrative rules require.”)
Third, Plaintiff objects to Magistrate Judge Wilkerson’s credibility finding (Doc. 46, p.
2). Plaintiff does not, however, provide any explanation as to why he believes Magistrate
Judge Wilkerson’s finding was wrong. Upon reviewing Magistrate Judge Wilkerson’s
explanation for his credibility finding, the Court concludes that his finding was sound. The
credibility finding will not be disturbed based solely on Plaintiff’s unadorned assertion that
the undersigned should find his testimony regarding the June 2014 grievances credible.
Finally, Plaintiff believes that the October 2nd grievance was sufficient to exhaust his
administrative remedies (see Doc. 46, p. 3). Again, he does not explain why Magistrate Judge
Wilkerson’s conclusion to the contrary was wrong. And after reviewing the record, the

Page 5 of 7

Court is persuaded that Magistrate Judge Wilkerson’s conclusion was correct. Plaintiff had
no reason to file his grievance directly with the ARB. See ILL. ADMIN. CODE TIT. 20 § 504.870.
But even if he did, he gave the ARB only seven days to respond before filing suit. That is
simply not enough time. Because Plaintiff did not allow the ARB ample time to respond, he
did not complete the grievance procedure and did not exhaust his administrative remedies.
Jackson v. Shepherd, 552 Fed.Appx. 591, 592 (7th Cir. 2014); Ford v. Johnson, 362 F.3d 395, 400
(7th Cir. 2004).
For these reasons, Plaintiff’s objections to the Report and Recommendation are not
persuasive, and his claims against Defendant John Coe will be dismissed without prejudice
for failure to exhaust administrative remedies.
As for the only remaining Defendant, Unknown Nurse, Plaintiff’s claims against her
also will be dismissed without prejudice. Unknown Nurse did not move for summary
judgment. In fact, she has not even been identified or served with process in this matter. But
under Rule 56(f) of the Federal Rules of Civil Procedure, the Court can grant summary
judgment for a nonmovant after giving the plaintiff notice and a reasonable time to respond.
The Report and Recommendation provided notice to Plaintiff and an opportunity to
respond to Magistrate Judge Wilkerson’s conclusion that he failed to exhaust with respect to
Unknown Nurse. Plaintiff did not do so (see Doc. 49). The Court finds that the facts of this
case and Dr. Coe’s arguments apply with equal force to Unknown Nurse. Having found that
Plaintiff failed to exhaust with respect to Dr. Coe, the Court likewise finds that Plaintiff also
failed to exhaust with respect to Unknown Nurse.
CONCLUSION
For these reasons, Plaintiff’s objections to the Report and Recommendation (Doc. 49)

Page 6 of 7

are OVERRULED. The Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 46) and GRANTS Defendant John Coe’s Motion for Summary
Judgment on the issue of exhaustion (Doc. 33). This case is DISMISSED without prejudice
for failure to exhaust administrative remedies.
IT IS SO ORDERED.
DATED: November 4, 2015
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

Page 7 of 7