Vela v. Thompson et al

Filing 61

OPINION AND ORDER: The Court OVERRULES defendants' objection 56 , ADOPTS Magistrate Judge Gotsch's Report and Recommendation 55 , and DENIES defendants' motion for summary judgment (more aptly characterized as a motion to dismiss) on grounds of exhaustion 18 . Signed by Senior Judge James T Moody on 2/20/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ALFRED VELA,
Plaintiff,
v.
INDIANA DEPARTMENT OF
CORRECTIONS,
CORIZON HEALTH INC, and
JOSEPH THOMPSON,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 3:16 CV 51

OPINION and ORDER
I.

BACKGROUND
Plaintiff Alfred Vela, a prisoner represented by counsel in this matter, is suing

Corizon Health Inc. and a prison physician, Joseph Thompson, claiming that he
received inadequate medical care after a slip-and-fall on ice while incarcerated, which
lead to paraplegia. (DE # 1.) Defendants have moved for summary judgment1 on
plaintiff’s claims, solely on the basis that plaintiff failed to exhaust his available
administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a). (DE # 18.) Specifically, defendants point to plaintiff’s failure to file a
formal grievance with the prison before filing suit, a fact which is undisputed.

1

Because the Seventh Circuit has clearly stated a preference for separating
exhaustion inquiries from summary judgment proceedings, Wagoner v. Lemmon, 778
F.3d 586, 592 (7th Cir. 2015), the court has construed defendants’ motion for summary
judgment as a motion to dismiss for failure to exhaust administrative remedies. (DE #
28.)

In an order dated January 24, 2017, the undersigned considered plaintiff’s
argument that his case should not be dismissed for failure to exhaust administrative
remedies, because no remedy was available by the time he had reason to believe that he
had received seriously inadequate care. Plaintiff pointed out that he submitted
numerous Requests for Heathcare, and received healthcare each time. According to
plaintiff, he did not realize that he was being inadequately cared for by prison medical
officials until it was too late, when he was paralyzed. At this point, plaintiff argued, no
further action by the prison could have supplied any remedy, and filing a grievance
would be a unnecessary technicality. Defendants, on the other hand, pointed to
plaintiff’s awareness of his deteriorating condition, and argued that if plaintiff
continued to have symptoms despite treatment, he should not have assumed medical
staff was doing its job correctly.
After acknowledging that the burden of proof is on defendants on the issue of
exhaustion, Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006), this court examined two
Seventh Circuit cases cited by plaintiff in support of his argument. First, in Perez v.
Wisconsin Department of Corrections, 182 F.3d 532, 538 (7th Cir. 1999), the Seventh Circuit,
in obiter dicta, described a hypothetical situation in which administrative remedies could
conceivably be unavailable to a prisoner. The Perez court commented: “It is possible to
imagine cases in which the harm is done and no further administrative action could
supply any ‘remedy.’ . . . Suppose the prisoner breaks his leg and claims delay in setting
the bone is cruel and unusual punishment. If the injury has healed by the time suit
begins, nothing other than damages could be a ‘remedy’ and if the administrative

2

process cannot provide compensation then there is no administrative remedy to
exhaust.” Id. at 538.
Next, in White v. Bukowski, 800 F.3d 392, 395 (7th Cir. 2015), the Seventh Circuit
built upon its dicta in Perez to hold that an incarcerated woman who gave birth to a
baby with birth defects had no available remedies after the defects were discovered,
and therefore was not required to exhaust administrative remedies before filing suit.
The White court reasoned: “For how could a prisoner be expected to file a grievance that
would be academic because no response would benefit him or her in the slightest?”
However, the court went on to highlight the plaintiff’s lack of awareness of her fetus’s
condition, explaining that “[t]he plaintiff may have had no reason to think at the time that
her medical care in the jail was seriously inadequate, that it posed a threat to the fetus. By the
time she discovered its inadequacy, or thought she had, which was when the baby was
born with severe birth defects, it was too late for her to obtain a remedy of better
prenatal care. . . . Likewise it was too late to request prompt transport to the emergency
room for her delivery. There was no remedy within the power of the jail to grant for the
baby’s birth defects.” Id. at 395 (emphasis added).
The undersigned concluded that, because no discovery had occurred in this case
and the sequence of events related to the development and progression of plaintiff’s
condition, his awareness of his condition, and the information and advice he received
from physicians, etc., was murky, questions of fact prevented the court from
determining as a matter of law whether or not a remedy was “available” to plaintiff
such that he was required to file a grievance before filing this lawsuit, in light of Perez
and White. The undersigned referred this case to Magistrate Judge Gotsch to

3

recommend a resolution of the questions of fact and issues of law necessary to
determine whether a remedy was “available” to plaintiff. (DE # 28.)
On June 28, 2017, Magistrate Judge Gotsch held a hearing in accordance with
Pavey v.Conley, 544 F.3d 739, 742 (7th Cir. 2008). (DE # 48.) He also accepted posthearing briefing from both sides. (DE ## 52-53.) On September 5, 2017, Magistrate
Judge Gotsch issued a Report and Recommendation (“the Report”), in which he found
plaintiff’s testimony credible and recommended denial of defendants’ request to
dismiss this case for failure to exhaust administrative remedies. Now before the court is
defendants’ objection to the Report. (DE # 56.)
II.

LEGAL STANDARD
When a party objects to a magistrate judge’s report and recommendation, the

district court “shall make a de novo determination of those portions of the report . . . or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The district
court has discretion to “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.; Fed. R. Civ. P. 72(b).
III.

DISCUSSION
Magistrate Judge Gotsch held a Pavey hearing at the undersigned’s request. At

that hearing, plaintiff testified that he was aware of his symptoms (progressive pain,
loss of sensation in legs, etc.) and recognized that his condition was “not normal.” (DE #
54 at 10:17-19.) He also testified that he repeatedly submitted Requests for Healthcare,
and that he received healthcare each time he did so. (Id. at 18:21-23.) He testified that he
did not file a grievance because he was submitting Requests for Healthcare, which he
understood was the way to receive medical care in prison. (Id. at 19:16-21.) Plaintiff

4

further attested that he did not think that the severe pain and loss of feeling in his legs
had anything to do with the quality of care that the prison medical staff was providing.
(Id. at 22:23-24:2.) Plaintiff further testified that, at a point much later after his surgery,
after he was unable to walk, and after meeting with attorneys, he realized that the
medical care he received might have been inadequate. (Id. at 20:8-14.)
Counsel for defendants argued that plaintiff should have noticed his condition
deteriorating and filed a grievance, so that prison medical staff had an opportunity to
“take a second look” at his care. (Id.) Counsel for plaintiff retorted that plaintiff did not
simply lie back and allow himself to dissolve into paraplegia; rather, he actively sought
medical attention, and received it. (Id. at 27:1-5.)
After considering oral arguments made by counsel at the hearing and posthearing briefing, Magistrate Judge Gotsch found plaintiff’s Pavey hearing testimony to
be credible and recommended that the undersigned find that plaintiff did not question
the quality of medical care he was receiving from defendants in response to his
Requests for Healthcare until after he was permanently paralyzed. (DE # 55 at 9.)
Magistrate Judge Gotsch further recommended that the undersigned apply White to this
case to conclude that no administrate remedy was available to plaintiff when he
realized he may have received substantially inadequate medical care. (Id. at 11.)
Defendants filed an eleven-page objection to the Report. (DE # 56.) In it,
defendants do not attack the fact that Magistrate Judge Gotsch credited plaintiff’s
testimony.2 In fact, there appear to be no objections to Magistrate Judge Gotsch’s

2

Indeed, during the Pavey hearing, counsel for defendants appeared to concede
the issue of credibility, stating: “[N]one of us have any reason not to [believe plaintiff’s
testimony.]” (DE # 54 at 28:5-7.)
5

findings of fact. Instead, defendants argue that the Magistrate Judge’s findings were
“contrary to law.” (DE # 56.) While it is difficult to parse out exactly what “law”
defendants are referring to, it is clear that defendants do not believe that White should
apply in this case.3 (DE # 56 at 4.)
As explained above, in White, the Seventh Circuit held that a prisoner who gave
birth to a baby with birth defects had no available remedies, and therefore was not
required to exhaust administrative remedies by filing a grievance before filing suit. The
White court reasoned that filing a grievance would be academic because no response
would benefit her. 800 F.3d at 395. The court emphasized that no remedy was available
to the prisoner because “by the time she discovered [her treatment’s] inadequacy, or
thought she had, . . . it was too late for her to obtain a remedy of better prenatal care. . . .
Likewise it was too late to request prompt transport to the emergency room for her
delivery. There was no remedy within the power of the jail to grant for the baby’s birth
defects.” Id. at 395.
White has been applied in cases similar to the one at hand. For example, in
Johnson v. United States, No. 14 C 10461, 2016 WL 7440270, at *3 (N.D. Ill. Dec. 27, 2016),
another inmate struck the plaintiff, Johnson, in the face with a wooden broom, which
injured the plaintiff in his face and head. He was immediately taken to health services,
but twelve days went by before he was again examined by medical personnel, despite

3

Defendants devote a considerable amount of briefing to the rationale behind the
exhaustion requirement and the unfairness that results to a prison and its staff when the
exhaustion requirement is not adhered to strictly. However, defendants appear to
overlook the fact that White articulates an exception to this requirement. It is plain that
defendants dislike White’s holding, yet it is still the law in this circuit, and this court
cannot abrogate it.
6

multiple requests for treatment. After four additional days, an x-ray was taken, which
revealed three facial fractures. Johnson filed suit without submitting a grievance. Id.
The Johnson court held that White controlled and the plaintiff could proceed to a
lawsuit without filing a grievance. The court held that, in the time between the fracture
and the eventual x-ray, Johnson could not have known that his facial fractures existed,
of his options for treatment, and that if not treated his fractures would become
permanent. Id. at *3. By the time the x-ray was performed and the condition became
known (and, in turn, the knowledge of a claim for denial or delay of treatment), the
damage was done. Accordingly, there were no administrative remedies that were
“available” to Johnson at the relevant time that had any hope of providing him with
relief. Id. No grievance could undo the damage, and there was no evidence that a
grievance would have spurred a physical visit and an x-ray any earlier. Id.
In another case, Pollard v. Dart, No. 15-CV-4638, 2016 WL 5404978, at *3 (N.D. Ill.
Sept. 28, 2016), the plaintiff alleged that he lost full function in his left hand due to a
delay in the treatment of a bone growth. Plaintiff had initially sought medical treatment
for pain in his hand, but did not receive it. He obtained a court order requiring the
county jail to address his medical needs, and the bone growth was discovered, but the
surgery that was subsequently scheduled never occurred. Pollard filed a defective
grievance which was returned to him, but did not subsequently file a proper one.
Months later, he was seen at an outside hospital, where he was told that due to the
delay in treatment, he would be deprived of regular mobility in his hand. Id. at *1.
The court held that Pollard was not required to exhaust his administrative
remedies by filing a second, proper grievance. Id. at *3. By the time he could have filed a

7

second, proper grievance, he had already lost full use of his left hand, so filing it would
not have averted the harm that the defendants’ conduct allegedly caused. Id.
This case is analogous to Johnson and Pollard in the ways that matter. As in
Johnson and Pollard, by the time the plaintiff had reason to be concerned about the care
he was receiving, permanent damage had occurred. Further, as in Johnson and Pollard,
the filing of a grievance after irreversible damage occurred would have been merely
academic, as no amount of grieving could avert that harm or provide a remedy.
As Magistrate Judge Gotsch noted, plaintiff’s lack of serious concern over the
quality of care he was receiving was reasonable; plaintiff knew that doctors were not
magicians, and that despite best efforts, sometimes improvements do not occur. It is
noteworthy that plaintiff frequently submitted Requests for Healthcare as his condition
progressed, in accordance with the prison’s procedures regarding healthcare needs.
Like the plaintiffs in Johnson and Pollard, plaintiff was persistent in seeking healthcare.
Plaintiff was clearly aware of his symptoms, frequently sought medical care to address
them, and received care each time. That he was not more skeptical of, more dissatisfied
with, or in possession of more technical medical knowledge regarding the medical care
he was receiving does not doom his claim. By the time he reasonably did have concerns
about the possibility of inadequate treatment, irreversible damage had occurred.
In sum, defendants have not sufficiently established that plaintiff had or should
have had any knowledge that the medical treatment he repeatedly requested and
received was seriously inadequate, or to employ the terminology of White, that it
ultimately “posed a threat” to his ability to walk. 800 F.3d at 395. There simply is not
enough evidence to convince this court that that degree of danger was perceptible or

8

should have been perceptible before plaintiff became paraplegic. Defendants carry the
burden of proof on this issue, and they have not satisfied their duty. Accordingly, the
court finds that White applies in this case and that no remedy was available for
purposes of the exhaustion requirement.
IV.

CONCLUSION
Defendants have not met their burden of proving the availability of

administrative remedies. Magistrate Judge Gotsch did not err. The court OVERRULES
defendants’ objection (DE # 56), ADOPTS Magistrate Judge Gotsch’s Report and
Recommendation (DE # 55), and DENIES defendants’ motion for summary judgment
(more aptly characterized as a motion to dismiss) on grounds of exhaustion (DE # 18).
SO ORDERED.
Date: February 20, 2018
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

9