STEPHEN C. WILLIAMS, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Stephen C. Williams by United States District Judge Michael J. Reagan pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a) for a Report and Recommendation on the issue of whether Plaintiff has exhausted his administrative remedies as to the claims against Dr. James Fenoglio. It is
On September 10, 2010, Plaintiff Jerry B. Palmer ("Plaintiff") filed his Complaint alleging deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915A, District Judge Reagan conducted a preliminary review of Plaintiff's Complaint on June 20, 2011. Judge Reagan dismissed all claims except Plaintiff's deliberate indifference claim against Defendant Dr. Fenoglio (Doc. 17, Count 1). As to Plaintiff's deliberate indifference claim, he alleges that Dr. Fenoglio failed to properly treat his injured arm (Doc 17 at p. 5). Plaintiff alleges that rather than attempting to treat his arm, Dr. Fenoglio simply determined it was beyond repair and labeled him handicapped (Id.).
Now before the Court for a Report and Recommendation is Defendant's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Doc. 26) and Plaintiff's Motion in Response to the Defendant's Motion for Summary Judgment (Doc. 31). The Defendant's motion alleges Plaintiff failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act pursuant to 42 U.S.C. §1997e(a). Specifically, Defendant alleges that while Plaintiff filed a grievance on May 17, 2009
Plaintiff's Complaint indicates that he met with Defendant Dr. Fenoglio regarding his shoulder in March, which was shortly after he was transferred from Hill Correctional Center ("Hill") to Lawrence Correctional Center ("Lawrence"). On May 17, 2009 Plaintiff filed a grievance alleging inadequate treatment of Plaintiff's injury. In accordance with Pavey v. Conley, the Court conducted an evidentiary hearing on February 27, 2012.
At the Pavey hearing, Plaintiff testified that he was unsure of the exact dates that he saw Defendant Dr. Fenoglio regarding his shoulder. Plaintiff acknowledged that the first person he saw after being transferred to Lawrence in March 2009 was a nurse practitioner. At that time, Plaintiff asked the nurse if she received paperwork regarding his shoulder injury to which she responded that she was not seeing him about his arm, but rather about his medications. In hopes of acquiring a second opinion, Plaintiff testified that he informed the nurse that the doctor at Hill informed him that he would not perform surgery on Plaintiff's shoulder because his arm was "dead." The nurse told Plaintiff that they did not provide second opinions for inmates, which led to the Plaintiff requesting to see a doctor. In addition to allegedly requesting to see a doctor, the Plaintiff testified that he also wrote two grievances with the help of other inmates. Plaintiff testified that he next met with Warden Ryker, who asked the Plaintiff if his shoulder was hurting. Plaintiff informed the Warden of his shoulder injury and Warden Ryker allegedly responded that he would schedule him an appointment with Defendant Dr. Fenoglio. While Plaintiff stated that he did eventually see Dr. Fenoglio, he acknowledged that he was unable to recall the exact dates. Plaintiff could not remember if he saw Dr. Fenoglio prior to filing his May 17, 2009 grievance, however, he testified that he saw Dr. Fenoglio regarding his arm on at least two occasions. According to the Plaintiff, Dr. Fenoglio told him nothing could be done for his arm, and proscribed him pain medication.
With respect to the exact dates which Plaintiff saw Dr. Fenoglio, Plaintiff testified that the medical records would indicate such dates but Plaintiff was unable to obtain the records from the prison. Counsel for the Defendant indicated that he had all of the Plaintiff's medical records in his possession. Accordingly, the Court ordered Defendant to provide Plaintiff's medical records dating from February 2009 through October 2009 to both the Court and Plaintiff.
Upon receipt and review of the medical records, it appears the first person Plaintiff saw regarding his shoulder at Lawrence was a registered nurse on March 2, 2009 during his intake review. Between March 4, 2009 and June 3, 2009, Plaintiff saw nurses on several different occasions for shoulder pain. The medical records indicate Plaintiff first saw Defendant Dr. Fenoglio on June 23, 2009, for what appears to be bronchitis and diabetes issues. The records do not indicate any discussion of a left shoulder injury at that time. Plaintiff did not see Defendant Dr. Fenoglio regarding his shoulder pain, however, until September 03, 2009.
Summary Judgment is proper "if the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact such that [Defendants are] entitled to judgment as a matter of law."
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act ("PLRA").
Under Pavey, the Seventh Circuit held that "debatable factual issues relating to the defense of failure to exhaust administrative remedies" are not required to be decided by a jury but are to be determined by the judge.
As an inmate confined within the Illinois Department of Corrections, Hall was required to follow the regulations contained in the Illinois Department of Correction's Grievance Procedures for Offenders ("grievance procedures") to properly exhaust his claims.
The grievance procedures do allow for an inmate to file an emergency grievance. In order to file an emergency grievance, the inmate must forward the grievance directly to the Chief Administrative Officer ("CAO") who may "[determine] that there is a substantial risk of imminent personal injury or other serious or irreparable harm to the offender" and thus the grievance should be handled on an emergency basis.
Defendant Fenoglio argues that he is entitled to summary judgment on Plaintiff's deliberate indifference claim because Plaintiff has failed to exhaust his administrative remedies against him. Defendant argues that although Plaintiff's May 17, 2009 grievance deals with his shoulder injury, the grievance does not mention Defendant. After reviewing the medical records requested at the Pavey hearing, it is clear from the record that Plaintiff did not see Dr. Fenoglio until after his May 17, 2009 grievance alleging lack of care. Therefore, because Plaintiff's grievance does not mention Dr. Fenoglio and he did not see him until after he filed his grievance, Plaintiff has not exhausted all of his available administrative remedies.
Plaintiff filed a grievance on May 17, 2009 for lack of care regarding his shoulder. At the Pavey hearing, Plaintiff testified that he saw Dr. Fenoglio on at least two occasions regarding his shoulder, but was unsure of the exact dates. Plaintiff could not recall if he saw Defendant before or after the May 17, 2009 grievance and noted that he did not write the grievance himself but had another inmate do so. Plaintiff also indicated he saw several nurses and the Warden regarding his shoulder before seeing Dr. Fenoglio. The medical records indicate that while Plaintiff complained of his shoulder to a nurse practitioner upon his intake review, and several other nurses, Plaintiff did not see Defendant Fenoglio until June 23, 2009. However, the medical records do not indicate that Plaintiff complained of his shoulder at this meeting, and instead the focus of the meeting was Plaintiff's bronchitis and possible diabetes. The records indicate that Plaintiff did not see Defendant Fenoglio for his shoulder until September 3, 2009. There is nothing in the medical records, testimony, or briefs filed with the Court that suggests Plaintiff saw Dr. Fenoglio regarding his shoulder before the May 17, 2009 grievance was filed.
As it is clear from the evidence in the record that Plaintiff had not seen Dr. Fenoglio prior to filing his May 17, 2009 grievance alleging lack of care, Plaintiff has not exhausted his remedies against Defendant Fenoglio. First, the Court notes that Plaintiff neither names nor describes Defendant Fenoglio in his grievances. The Illinois Department of Correction's Grievance Procedures specifically states that an inmate must name, or at the very least, describe the person who is the subject of the grievance.
Further, the Court notes that Plaintiff could not have properly named Defendant Fenoglio in his May 17, 2009 grievance, because he had not yet seen him. Plaintiff testified that he was unsure when he saw Defendant Fenoglio, but he did recall that he saw him after seeing several nurses and the warden, which is consistent with the medical records. After reviewing the records, it is clear that Plaintiff first saw Defendant Fenoglio for his shoulder on September 3, 2009. Also, in response to Plaintiff's May 11, 2009 and May 17, 2009 grievances, Plaintiff's counselor noted that Dr. Fenoglio was made aware of the grievance and would bring Plaintiff in for an exam, further evidence that Plaintiff had not yet been seen by Dr. Fenoglio at the time he wrote his grievances. Thus, as Plaintiff had not yet seen Defendant Fenoglio on May 17, 2009, there was nothing for the Plaintiff to grieve against Dr. Fenoglio on that day as Dr. Fenoglio never had a chance to treat Plaintiff for his shoulder. The grievance procedures require inmates to file a grievance within 60 days of the incident.
Accordingly, the undersigned
PURSUANT to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days of service.
Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).
