Hickman v. Wexford Healthcare Sources et al

Filing 52

ORDER denying 35 Motion for Summary Judgment; denying 39 Motion for Summary Judgment; adopting 44 Report and Recommendations. Signed by Judge David R. Herndon on 10/16/2018. (jer)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TONY HICKMAN,
Plaintiff,
v.

No. 17-cv-939-DRH-RJD

WEXFORD HEALTHCARE SOURCES,
VIPIN SHAH, and PHIL MARTIN,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
I.

Introduction

Pending before the Court is a June 1, 2018 Report and Recommendation
(“the Report”) issued by Magistrate Judge Reona J. Daley. (Doc. 44). Judge Daley
recommends that the Court deny both Defendants Shah and Wexford’s Motion for
Summary Judgment for Plaintiff’s Failure to Exhaust Administrative Remedies
(Doc. 35) and Defendant Martin’s Motion for Summary Judgment on the Issue of
Exhaustion of Administrative Remedies. (Doc. 39). The parties were allowed time
to file objections to the Report and on June 18, 2018, Defendants Shah and
Wexford and Defendant Martin filed objections. (Doc. 46, 47). Based on the
applicable law, the record and the following, the Court ADOPTS the Report in its
entirety.
II.

Background
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On September 1, 2017, Plaintiff Hickman commenced this action pursuant
to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is
proceeding on the following claim:
Count 1 - Defendants showed deliberate indifference to Plaintiff’s serious
medical needs involving a broken wrist and pain associated therewith in
violation of the Eighth Amendment.
Plaintiff asserts that he exhausted his administrative remedies when he filed a
grievance concerning the treatment of his wrist on February 21, 2017. Plaintiff’s
grievance states:
On 4-28-16, I was playing handball and injured my wrist which
resulted in swelling and a fracture in my wrist. I went to healthcare
on 4-28-16 and was given an ace wrap and ibuprofen. On 5-2-16, I
want back to healthcare and was prescribed more ibuprofen. This
grievance is for failure to provide adequate medical care and delaying
treatment for the injury because surgery wasn’t provided until 10-2116.
(Doc. 42, p. 14).
Plaintiff’s grievance further provides that that he was told that he will need a
second surgery because his wrist was not healing properly. He grieves that he is
still suffering from a wrist fracture that was not properly treated from the
beginning because Dr. Shah did not put in a request for Plaintiff to go to Carle
Ortho until August 29, 2016 and Wexford did not send him to have his wrist
examined by an orthopedic physician until October 5, 2016. Plaintiff alleges that
the delay in treatment caused his wrist not to heal properly even after surgery.
On February 24, 2017, a Counselor responded to Plaintiff’s grievance
stating that he spoke with the health care unit and Dr. Shah was treating the

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Plaintiff and following the recommendations from Carle Ortho. On March 1, 2017,
the Grievance Officer recommended the denial of Plaintiff’s grievance because Dr.
Shah referred the offender to outside screening at Carle Clinic and Dr. Shah was
using the treatment plan designed by Carle medical staff. The report notes the
offender is not being denied medical care and the department has no control over
the length of time it takes for the offender to heal from an injury. On March 2,
2017, the CAO concurred with the Grievance Officer’s report. Plaintiff then
appealed the denial of his grievance and the ARB returned the grievance on July
10, 2017 because it was not submitted within the timeframe outlined in
Departmental Rule 504. The ARB concluded that the grievance was regarding the
delay in treatment from April 2016 to October 2016 and filing the grievance on
February 21, 2017 was outside the 60-day timeframe.
III.
A.

Applicable Law

Summary Judgment
Summary judgment is appropriate only if the moving party can

demonstrate “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); Celotex
Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-Thompkins v.
Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine
issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported
motion for summary judgment is made, the adverse party “must set forth specific

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facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). A genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248). In determining a summary judgment motion, the
district court views the facts in the light most favorable to, and draws all
reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v.
Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust
available administrative remedies prior to filing lawsuits in federal court. “[A]
prisoner who does not properly take each step within the administrative process
has failed to exhaust state remedies.” Pozo v. McCaughtry, 286 F.3d 1022, 1024
(7th Cir. 2002). “[A] suit filed by a prisoner before administrative remedies have
been exhausted must be dismissed; the district court lacks discretion to resolve
the claim on the merits, even if the prisoner exhausts intra-prison remedies
before judgment.” Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir.
1999). “[A]ll dismissals under § 1997e(a) should be without prejudice.” Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must
first submit a written grievance within 60 days after the discovery of the incident,
occurrence or problem, to his or her institutional counselor, unless certain
discrete issues are being grieved. 20 ILL. ADMIN. CODE § 504.810(a). If the

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complaint is not resolved through a counselor, the grievance is considered by a
Grievance Officer who must render a written recommendation to the Chief
Administrative Officer —usually the Warden —within two months of receipt,
“when reasonably feasible under the circumstances.” Id. §504.830(e). The CAO
then advises the inmate of a decision on the grievance. Id. An inmate may appeal
the decision of the Chief Administrative Officer in writing within 30 days to the
Administrative Review Board for a final decision. Id. §_504.850(a); see also Dole
v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a
written report of its findings and recommendations to the Director who shall
review the same and make a final determination within 6 months of receipt of the
appeal. 20 ILL. ADMIN. CODE § 504.850(d) and (e).
An inmate may request that a grievance be handled as an emergency by
forwarding it directly to the Chief Administrative Officer. Id. § 504.840. If it is
determined that there exists a substantial risk of imminent personal injury or
other serious or irreparable harm, the grievance is handled on an emergency
basis, which allows for expedited processing of the grievance by responding
directly to the offender. Id. Inmates may further submit certain types of grievances
directly to the Administrative Review Board, including grievances related to
protective custody, psychotropic medication, and certain issues relating to
facilities other than the inmate’s currently assigned facility. Id. at § 504.870.
B.

Review of the Report & Recommendation
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1),

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which provides in part:
A judge of the court shall make a de novo determination of those
portions
of
the report or
specified
proposed
findings
or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the
magistrate judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de
novo determination of those portions of the report and recommendation to which
specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the
Court reviews those unobjected portions for clear error. Id. In addition, failure
to file objections with the district court “waives appellate review of both factual
and legal questions.” Id. Under the clear error standard, the Court can only
overturn a Magistrate Judge's ruling if the Court is left with “the definite and firm
conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co.,
Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
IV.

Analysis

Defendant Shah, Wexford, and Martin seek summary judgment for
Plaintiff’s failure to exhaust administrative remedies. In the Report, Judge Daley
ultimately found that Plaintiff exhausted his administrative remedies as to all
defendants. In their responses, Defendants raise two objections to Judge Daley’s
findings.

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First, Defendants argue that the Report incorrectly determined that
Plaintiff’s grievance involved an ongoing medical issue. Specifically, Defendants
argue that:
Plaintiff received treatment, i.e. his October 2016 surgery, after the
alleged delay in medical treatment. See Exhibit A. Therefore, the
surgery was treatment provided subsequent to the alleged deliberate
indifference to Plaintiff’s serious medical need, thus constituting an
intervening action from which the grievance timeline begins to tick.
(Doc. 46, p. 3).
The Seventh Circuit has determined that “[d]eliberate indifference to a serious
medical need is a continuing violation that accrues when the defendant has
noticed of the untreated condition and ends only when treatment is provided or
the inmate is released.” Jervis v. Mitcheff, 258 F. App'x 3, 6 (7th Cir. 2007). In
Burt v. Harrington, the court relied on Jervis and found that the plaintiff’s
October 2012 grievance was insufficient to exhaust his administrative remedies.
Importantly, the court noted that “there is simply nothing in the grievance that
suggests he was complaining that the Motrin ‘never eliminated the excruciating
pain’. . .” WL 468211, at *5 (S.D. Ill. Feb. 3, 2017).
In this case, unlike in Burt, Plaintiff clearly indicates in his grievance that
he requests that his ongoing issues with his wrist be addressed. Specifically,
Plaintiff alleges that he was told he would need a second surgery and his
requested relief was that he receives the right treatment/surgery to repair his
wrist. Therefore, as Judge Daley correctly found in the Report, Defendants have
not met their burden in proving as an affirmative defense exhaustion of
administrative remedies.
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Defendants further argue that Plaintiff’s grievance amounts to two separate
and distinct grieved issues and should be analyzed as such. The Court rejects the
above contention because Plaintiff’s grievance clearly indicates that the alleged
delay in treatment, the surgery, and Plaintiff’s alleged ongoing pain arise from the
same injury. Specifically, Plaintiff grieves that “[t]he delay in treatment has caused
my wrist not to heal properly even after the surgery. My wrist and hand is still
causing me pain . . . .” (Doc. 42, p. 16). As such, the Court finds that Plaintiff’s
grievance does not amount to two separate and distinct grieved issues that should
analyzed as separate grievances.
Therefore, after de novo review, the Court finds that Judge Daley was
correct in her denial of Defendants’ motions for summary judgment.
V.

Conclusion

Accordingly, the Court ADOPTS the Report in its entirety (Doc. 44) and
DENIES both Defendants Shah and Wexford’s Motion for Summary Judgment for
Plaintiff’s Failure to Exhaust Administrative Remedies (Doc. 35) and Defendant
Martin’s Motion for Summary Judgment on the Issue of Exhaustion of
Administrative Remedies. (Doc. 39).
IT IS SO ORDERED.

Judge Herndon
2018.10.15
16:57:52 -05'00'
United States District Judge

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