Kimmel v. Frailey et al

Filing 114

ORDER ADOPTING REPORT AND RECOMMENDATIONS - The Court ADOPTS the Report and Recommendation [Doc. 93] and therefore DENIES the Motion for Summary Judgment [Doc. 78] filed by Defendants Frailey, Winter, Franklin, Schutt, George, Kluge and Shicker. Signed by Judge Staci M. Yandle on 12/16/15. (hjg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ZACHARIAH A. KIMMEL,
Plaintiff,
v.
MELISSA FRAILEY, et al.,
Defendants.

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Case No. 3:14-cv-1381-SMY-PMF

ORDER ADOPTING REPORT AND RECOMMENDATIONS
This matter comes before the Court on the Report and Recommendation ("Report") (Doc.
93) of Magistrate Judge Philip M. Frazier recommending the Court deny Defendants Frailey,
Winter, Franklin, Schutt, George, Kluge, and Shicker's Motion for Summary Judgment (Doc. 78).
Defendants argue that Plaintiff did not exhaust his administrative remedies under section 1997e(a)
of the Prison Litigation Reform Act of 1995 ("PLRA") (42 U.S.C. § 1997e(a) (2013)) prior to filing
suit. Plaintiff filed a Response to the motion (Doc. 82). Defendants filed an Objection to the
Report (Doc. 99). For the following reasons, the Court adopts the Report and DENIES the Motion
for Summary Judgment.
Background
Plaintiff brings his claim pursuant to 42 U.S.C. § 1983, alleging Defendants were
deliberately indifferent to his medical needs in violation of the Eighth Amendment (Doc. 1).
Plaintiff was incarcerated at Vienna Correctional Center ("Vienna") when the events that gave rise
to this lawsuit occurred (Doc. 1, p. 9). Plaintiff alleges that on August 23, 2014, he injured his right
foot while in the prison yard (Doc. 1, p. 9). Over the course of several days, Defendants Frailey,
Winter, Kluge, Franklin, and Santos treated Plaintiff and diagnosed him with a sprained ankle.
However, x-rays later revealed that Plaintiff's heel was fractured (Doc. 1, p. 9-10).
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On September 1, 2014, Plaintiff slipped and fell in the Vienna observation unit, further
injuring his foot as he fell (Doc. 1, p. 10). Plaintiff alleges that Defendant Schutt's treatment of
Plaintiff's injury after the fall constituted deliberate indifference (Doc. 1, p. 10). Plaintiff was
examined by Dr. Young, a physician at the Orthopedic Institute of Southern Illinois, who told
Plaintiff that surgery was inappropriate (Doc. 1, p. 10). Dr. Young gave Plaintiff an air cast and a
prescription for pain medicine (Doc. 1, p. 10). Plaintiff alleges that the health care providers at
Vienna refused to comply with Dr. Young's treatment plan and that Defendant George did not take
corrective action when health care providers at Vienna did not abide by the treatment plan (Doc. 1,
p. 10). Plaintiff also contacted the IDOC medical director, Defendant Shicker, regarding his
medical treatment (Doc. 1, p. 9-10). Plaintiff alleges that Defendant Shicker's response to Plaintiff's
complaint constituted deliberate indifference (Doc. 1, p. 10).
Plaintiff filed several grievances in 2014 regarding his medical treatment and prison
conditions. On September 1, 2014, Plaintiff filed three grievances stating that the crutches that the
health care unit provided him were broken, that he was not being given appropriate medication and
that he was denied use of the disabled accessible bathrooms (Doc, 1-3 p. 3-5). On September 5,
2014, Plaintiff filed a grievance complaining that his foot injury was being improperly treated (Doc.
1-3, p. 8). The Grievance Officer denied these four grievances on October 3, 2014 (Doc. 79-7, p. 2,
4, 8, 10).

According to IDOC regulations, if Plaintiff wanted to appeal the denials of his

grievances, he had 30 days, or until November 2, 2014, to do so (20 Ill. Admin. Code § 504.840).
The Administrative Review Board ("ARB") received Plaintiff's appeal on November 5, 2014 and
denied the appeal as untimely (Doc. 79-7, p. 1).
Plaintiff filed another grievance on September 9, 2014 in which he alleged that he was not
receiving appropriate medication and that the health care employees were retaliating against him
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(Doc. 79-8, p. 1). The ARB denied the grievance on the merits on November 2, 2014 (Doc. 79-8, p.
1). The ARB also denied two of Plaintiff's emergency grievances (Doc. 79-11, p. 1). The Warden
of Vienna determined that the grievances were not emergencies and the ARB directed Plaintiff to
resubmit the grievances through the non-emergency grievance process.
Analysis
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3).
The Court must review de novo the portions of the report to which objections are made. The Court
has discretion to conduct a new hearing and may consider the record before the magistrate judge
anew or receive any further evidence deemed necessary. Id. Because Defendants filed an objection
to the Report, the Court will review the record de novo.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc.,
211 F.3d 392, 396 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a
court cannot enter summary judgment for the moving party even if the opposing party fails to
present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir.
1992).
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform
Act ("PLRA"). 42 U.S.C. §1997e(a). That statute states in pertinent part that, "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." Id. The Seventh Circuit requires strict adherence to the
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PLRA's exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that
'[t]his circuit has taken a strict compliance approach to exhaustion"). Therefore, exhaustion is a
condition precedent to filing a claim in federal court, so the inmate must exhaust before he
commences his federal litigation. See Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004); Dixon v.
Page, 291 F.3d 485, 488 (7th Cir. 2002); Perez v. Wisconsin Department of Corr., 182 F.3d 532,
535 (7th Cir. 1999). If the inmate fails to exhaust before filing suit in federal court, the district
court must dismiss the suit, or dismiss any claims not fully exhausted. See Jones v. Bock, 549 U.S.
199, 223 (2007); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). Because exhaustion is an
affirmative defense, "the burden of proof is on the prison officials." Kaba v. Stepp, 458 F.3d 678,
680 (7th Cir. 2006).
When determining filing dates for prisoners, federal courts generally apply the prisoner
mailbox rule, which provides that a prisoner's document is deemed filed when it is placed in the
prison mail system. Ingram v. Jones, 507 F.3d 640 (7th Cir. 2007). In order for Plaintiff to timely
file his appeal of the Administrative Review Board's findings with respect to the four September
grievances, he had to place the appeal in the prison mail system no later than November 2, 2014,
which was a Sunday. In their Objection to the Report, Defendants submitted the envelopes Plaintiff
used to file his grievances which were date-stamped by the United States Postal Service ("USPS").
grievances. However, there is no indication as to when Plaintiff placed the appeals in the prison
mail system. In fact, the USPS date stamp could support the position that Plaintiff placed the appeal
in the prison mail system on November 2, 2014. Accordingly, the four September 2014 grievances
and appeals were timely filed. Thus, Plaintiff properly exhausted his administrative remedies with
respect to those grievances.

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Defendants also argue that even if Plaintiff exhausted his administrative remedies with two
emergency grievances and one non-emergency grievance, those grievances lack the requisite
specificity. IDOC regulations provide that, "[t]he grievance shall contain factual details…including
what happened, when, where, and the name of each person who is the subject of or who is otherwise
involved in the complaint. This provision does not preclude an offender from filing a grievance
when the names of individuals are not known, but the offender must include as much descriptive
information about the individual as possible." 20 Ill. Admin. Code § 504.810(a). Here, while
cursory, Plaintiff's grievances include enough information to explain the events giving rise to the
grievances and to connect Defendants to those events.

Plaintiff provided enough necessary

information to be sufficient under the IDOC regulation. Therefore, Plaintiff has satisfied the
administrative remedies process with respect to those grievances.
Accordingly, the Court ADOPTS the Report of Magistrate Judge Frazier (Doc. 93) and
DENIES Defendants' Motion for Summary Judgment (Doc. 78).

IT IS SO ORDERED.
DATED: December 16, 2015
s/ Staci M. Yandle_ __
STACI M. YANDLE
DISTRICT JUDGE

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