Mitts v. Martin et al
ORDER ADOPTING 84 Report and Recommendation and GRANTING 43 Motion for Summary Judgment on the issue of exhaustion filed by Defendants John Coe and Hector Garcia. Defendants Coe and Garcia are DISMISSED without prejudice. Signed by Judge Nancy J. Rosenstengel on 9/22/2016. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DR. PHIL MARTIN, DR. HECTOR
GARCIA, WARDEN DUNCAN, DR.
JOHN COE, LT. BAYOR, C/O RUE, C/O
SIMMON, and OFFICER ZWILLING,
Case No. 3:15-CV-811-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. 84), which recommends that the
Motion for Summary Judgment on the Issue of Exhaustion (Doc. 43) filed by Defendants
Dr. John Coe and Dr. Hector Garcia be granted. The Report and Recommendation was
entered on July 8, 2016. Plaintiff filed a timely objection (Doc. 89).
Plaintiff alleges in his Second Amended Complaint (Doc. 82) that his
constitutional rights were violated while he was incarcerated at Lawrence Correctional
Center when medical personnel, including Defendants Garcia and Coe, delayed and
denied treatment for his mycosis fungoides, a rare T-cell lymphoma of the skin.
Specifically, Plaintiff alleges he had an appointment with a specialist, Dr. Yadira Hurley
of Saint Louis University, on September 24, 2014, and was directed to return in six
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months or sooner depending on the treatment he received. According to the complaint,
Defendants Duncan, Coe, Martin, and Garcia either canceled or refused to schedule any
follow-up visit to Dr. Hurley. Following an initial screening of the complaint pursuant to
28 U.S.C. § 1915A, and the filing of two amended complaints, Plaintiff is proceeding in
this action on his Eighth Amendment deliberate indifference claim against Defendants
Duncan, Coe, Martin, and Garcia for failing to adequately treat his mycosis fungoides.
On February 1, 2016, Defendants Coe and Garcia filed a Motion for Summary
Judgment on the Issue of Exhaustion (Doc. 43). Specifically, they assert that Plaintiff
never submitted a grievance naming Defendant Coe in relation to the actions at issue in
this lawsuit and the grievances complaining about Defendant Garcia were received by
the ARB after Plaintiff filed this lawsuit on July 27, 2015. Plaintiff timely filed a response
(Doc. 56) on February 18, 2016. Finding that Plaintiff did not dispute any of the basic
facts regarding the filing of his grievances, Magistrate Judge Wilkerson found it was
unnecessary to hold a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008),
and issued the Report and Recommendation currently before the Court (Doc. 44). The
Report and Recommendation accurately states the nature of the evidence presented by
both sides on the issue of exhaustion, as well as the applicable law and the requirements
of the administrative process.
Conclusions of the Report and Recommendation
Based upon the evidence before the Court, Magistrate Judge Wilkerson found
that Plaintiff failed to exhaust his administrative remedies. Magistrate Judge Wilkerson
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studied the grievances filed by Plaintiff and found that only three were relevant to the
events at issue in this lawsuit: one dated August 14, 2013, and two dated July 10, 2015.
With regard to the August 14, 2013 grievance, Magistrate Judge Wilkerson found
that the statements in Plaintiff’s grievance were insufficient to exhaust his claim against
Defendants Coe or Garcia because any complaints about medical treatment for his health
condition in August 2013 precede the claims lodged against Defendants Coe and Garcia
in this lawsuit, which are based on the denial of treatment after September 24, 2014. 1
Even if the grievance related to the events at issue in this lawsuit, Plaintiff’s attempts to
exhaust the grievance were insufficient. Plaintiff’s counselor responded to the grievance
on September 25, 2013. The Grievance Officer then received the grievance on October 3,
2013, and issued a response on March 26, 2014. The grievance next went to the Chief
Administrative Officer (“CAO”), who concurred with the Grievance Officer’s response
on April 9, 2014. There is no evidence that Plaintiff ever appealed the CAO’s response to
the Administrative Review Board (“ARB”).
With regard to the two grievances dated July 10, 2015, Magistrate Judge
Wilkerson found that Plaintiff submitted one grievance marked “emergency” directly to
the CAO, who responded on July 13, 2015. Plaintiff appealed that grievance to the ARB,
which received it on July 31, 2015. The ARB responded on August 17, 2015. Plaintiff
submitted the other July 10, 2015 grievance (which was identical to the first other than it
was not marked “emergency”) to his grievance counselor, who responded on July 16,
Plaintiff apparently concedes the August 14, 2013 grievance is irrelevant to the conduct complained of in
this lawsuit, stating in his Objection (Doc. 89) to the Report and Recommendation [Doc. 84] that “the only
grievances dealing with both Defendants Garcia and Coe, are dated July 10, 2015.” The Court notes,
however, that the July 10, 2015 grievances only specifically mention Defendant Garcia, not Defendant Coe.
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2016. There is no indication that a Grievance Officer or the CAO responded to this
grievance. The ARB received this grievance on July 31, 2015, and on August 17, 2015,
directed Plaintiff to provide a copy of the Grievance Officer’s and CAO’s response.
In light of this evidence, Magistrate Judge Wilkerson found that Plaintiff did not
exhaust his administrative remedies with regard to the July 10, 2015 grievances. The July
10, 2015 grievance submitted under the normal review process was not submitted to the
Grievance Officer or CAO for review prior to Plaintiff appealing to the ARB. As a result,
this grievance was insufficient to establish exhaustion of Plaintiff’s claims against
Defendants Coe or Garcia. The July 10, 2015 grievance that was marked “emergency”
was properly sent to the ARB after the CAO determined than an emergency was not
substantiated. But it was not received by the ARB until July 31, 2015—four days after
Plaintiff filed his lawsuit. Because Plaintiff did not properly follow the normal grievance
procedure, and because he failed to wait until the ARB reviewed—or even received—the
emergency grievance prior to filing suit, the grievance process was not exhausted.
Where timely objections are filed, this Court 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). The Court may accept, reject or
modify the magistrate judge’s recommended decision. Harper, 824 F. Supp. at 788. In
making this determination, the Court must look at all of the evidence contained in the
record and give fresh consideration to those issues to which specific objections have
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been made. Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure
§ 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).
Here, Plaintiff filed a timely objection to the Report and Recommendation. In his
objection, Plaintiff argues that the grievance process was exhausted because he notified
the Illinois Department of Corrections of his complaints and pursued his grievances
until they were denied through the normal grievance process or through the expedited
emergency process. However, Plaintiff’s objection ignores the grievance procedure set
forth by the Illinois Administrative Code.
Under the Illinois Administrative Code, an inmate must first attempt to resolve a
complaint informally with his Counselor. ILL. ADMIN. CODE TIT. 20, § 504.810(a). If
the complaint is not resolved, the inmate may file a grievance with the Grievance Officer
within 60 after the discovery of the incident, occurrence, or problem that gives rise to the
grievance. Id. § 504.810(b). The Grievance Officer then must advise the CAO in writing of
the findings on the grievance. Id. § 504.830(d). The CAO shall advise the inmate of the
decision on the grievance within two months of it having been filed. Id. § 504.830(d). An
inmate may appeal the decision of the CAO in writing within 30 days to the ARB for a
final decision. Id. § 504.850(a). An inmate’s administrative remedies are not exhausted
until an appeal is ruled on by the ARB. See ILL. ADMIN. CODE tit. 20, § 504.810; Dole v.
Chandler, 438 F.3d 804, 807-09 (7th Cir. 2006). The ARB has six months from the receipt of
the appealed grievance to make a final determination. Id. at § 504.810(f).
Plaintiff’s objection does not refute Magistrate Judge Wilkerson’s findings that he
failed to submit his non-emergency July 10, 2015 grievance to the Grievance Officer or
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CAO for review. Rather, Plaintiff appears to argue that the emergency procedure is
separate from the normal grievance process and that he is not required to engage in the
normal grievance process “after exhaustion of the emergency grievance process.” Based
on the evidence put forth before the Court, however, Plaintiff did not exhaust his claims
against Defendants Coe and Garcia through the emergency grievance procedure. The
appeal of Plaintiff’s emergency grievance was received by the ARB on July 31, 2015;
Plaintiff filed suit on July 27, 2015. Plaintiff did not give the ARB a chance to respond to
his appeal and, thus, did not exhaust the administrative review process.
Overall, the Court finds the factual findings and rationale of the Report and
Recommendation sound. It is well established that an inmate cannot file suit first, then
reach administrative exhaustion second. See Cannon v. Washington, 418 F.3d 714, 719 (7th
Cir. 2005). Here, it is apparent to the Court that Plaintiff did not fully exhaust his
administrative remedies prior to filing suit, and thus the motion for summary judgment
must be granted.
For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 84) and GRANTS the Motion for Summary Judgment on the
Issue of Exhaustion filed by Defendants Dr. John Coe and Dr. Hector Garcia (Doc. 43).
Defendants Coe and Garcia are DISMISSED without prejudice. The Clerk shall enter
judgment accordingly at the conclusion of the entire action.
IT IS SO ORDERED.
DATED: September 22, 2016
NANCY J. ROSENSTENGEL
United States District Judge
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