REPORT AND RECOMMENDATION
GILBERT C. SISON, Magistrate Judge.
INTRODUCTION
Pursuant to 42 U.S.C. § 1983, Plaintiff Steven Murphy ("Murphy"), an inmate incarnated at Menard Correctional Center ("Menard"), filed this complaint against Travis Allen, James Mount, Bonnie May and Cheryl Brown for deprivations of his constitutional rights that occurred while he was a detainee at the Jefferson County Justice Center ("Jefferson County"). Murphy alleges that he was denied medical treatment for his fractured foot and ankle while he was a pretrial detainee at Jefferson County. Pending before the Court is Defendants Allen, Mount and May's motion for summary judgment on the issue of exhaustion of administration remedies (Docs. 44, 45 & 57). Plaintiff, by and through court appointed counsel, opposes the motion (Doc. 54).1 The Court held a hearing on the motion on June 14, 2019, heard testimony from N. Craig Mansker, a Lieutenant at Jefferson County, and from Murphy and took the matter under advisement.
This matter has been referred to United States Magistrate Judge Gilbert C. Sison by United States Senior District Judge J. Phil Gilbert pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b) and Local Rule 72.1(a).2 Based on the following, the undersigned recommends that the District Court D DENY the motion for summary judgment based on the failure to exhaust.
FACTS
Jefferson County has a Detainee Handbook. Upon entering the jail, each detainee is provided a copy of the Detainee Handbook. Each detainee is required to sign a "Receipt of Property and Personal Use Items" indicating that he/she received the handbook. Murphy signed the receipt on July 1, 2015.
On April 16, 2018, Murphy filed a complaint alleging, inter alia, that on May 22, 2016, while confined at Jefferson County, he was involved in a physical altercation with another detainee in which he suffered a fractured foot and ankle and the other detainee sustained an injury to his eye and face (Doc. 1). The complaint further alleges that on May 24, 2016, Murphy met with Nurse Cheryl Brown. Nurse Brown scheduled an x-ray, which showed that Murphy had "several fracture[d] bones in his foot and ankle." Nurse Brown gave Murphy an ace bandage, pain medication and ice. Murphy was also scheduled for an appointment with an orthopedic specialist. It was unclear whether surgery would be necessary to repair Murphy's foot and ankle injuries as Murphy never found out.
On June 2, 2016, Mount and May canceled the appointment. Murphy contends that he "wrote Captain Mount through several grievances in regards with [his] appointment being cancelled." Murphy further contends that his attorney "wrote Captain Mount and Travis Allen about [his] appointment being cancelled and in doing so Captain Mount wrote [his] Attorney back telling him [Murphy] would be rescheduled another appointment which [Murphy] never got." Because Murphy was denied timely and adequate medical treatment for his fractured foot and ankle, the injuries healed improperly.
The record reflects that Murphy was detained at Jefferson County from July 1, 2015 to December 8, 2016. Murphy's Residential Request Report shows that Murphy used the kiosk system from July 8, 2015 to December 7, 2016. Inmates used the kiosk system to order items from the commissary and to file requests and grievances. During this time frame, Murphy submitted 36 commissary pack requests, 110 emergency grievances, 8 jail grievances, 38 jail requests, 20 medical grievances and 88 medical requests.
On June 1, 2016, Murphy sent a medical grievance stating: "I want to bring to your attention that my ankle got broke on May 22 and its been to [sic] weeks and I have not seen a fot [sic] doctor yet and now my ankle is healing wrong and am having sharp pain in my bone going up to my knee and since then I have been in seg having to walk up and down the stairs." On June 2, 2016, Captain Mount and May cancelled the appointment to see an outside doctor. That same date, Murphy submitted a medical grievance stating: "I want it on file that I have been denied my appointment because I told them not to shackle my ankles and they took me right back to my cell in seg may 3, 2016." This medical grievance was sent directly to health care. Nurse Brown received the medical grievance and told Murphy that he should "talk to Captain Mount."
On May 23, 2018, Judge Gilbert found that Murphy's claim for denial of adequate medical care against Allen, Mount, May and Brown survived 28 U.S.C. § 1915A review (Doc. 6). In response to the complaint, Defendants Allen, Mount and May filed a motion for summary judgment arguing that Murphy failed to exhaust his administrative remedies. As the motion for summary judgment is ripe, the Court addresses the merits of the motion.
LEGAL STANDARDS
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." Wragg v. Village of Thornton, 604 F.3d 464, 467 (7th Cir. 2010). 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. (emphasis added). The Seventh Circuit requires strict adherence to the PLRA's exhaustion requirement. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)(noting that `[t]his circuit has taken a strict compliance approach to exhaustion"). Exhaustion must occur before the suit is filed. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending. Id.
Moreover, "[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to utilize a prison's grievance process, "the prison administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely unexhausted." Dole, 438 F.3d at 809. The purpose of exhaustion is to give prison officials an opportunity to address the inmate's claims internally, prior to federal litigation. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)
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. Pavey v. Conley, 544 F.3d 739, 740-741 (7th Cir. 2008). Thus, where failure to exhaust administrative remedies is raised as an affirmative defense, the Court established the following procedure:
The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, the judge will then determine whether (a) the plaintiff has failed to exhaust his administrative remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted administrative remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), and so he must be given another chance to exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's not just being given a runaround); or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.
Id. at 742.
As to the grievance procedure, the Jefferson County the Detainee Handbook provides as follows:
DETAINEE REQUEST FORMS: The primary method for submitting a request form is to use the kiosk in your housing area. This method will electronically submit your request to a shift supervisor. If you cannot use the kios [sic] or they are un-operational use this secondary method.
Obtain a request form from any correctional officer. Request forms are submitted to the shift supervisor. A request form should only be submitted if officers cannot help you with your request. You will be given a copy of the request with a response from the shift supervisor. If you do not get a response back the request may have been handled by an officer or the request form should not have been submitted.
JAIL/DETAINEE COMMCTNICATION
All Jefferson county forms including Medical Request/Sick Call, Grievance Forms, and Request Forms are to be completed and submitted electronically by using the kiosk machine in the housing areas. Emergency Grievance or Request forms are for emergency situations only, i.e., officer misconduct, or sexual misconduct if you need to repot [sic] something of this nature report to control that you have an emergency and need to speak to someone in charge. If the Kiosk is not functional notify the control center by using the intercom on the wall and explain that the kiosk in not operational and what you need.
GRIEVABLE ISSUES:
Below are listed grievable issues. Unless an issue clearly falls into one of these categories, the issue is non-grievable.
— An alleged violation of civil, constitutional, or statutory rights or policy.
— An alleged criminal or prohibited act by a JCJC staff member, to include unjust enforcement or misuse of facility rules and discipline procedures.
— Application or lack of application of facility policies and procedures or action that creates a situation that is unsafe, inhumane, or unsanitary.
—Denial to use, reprisals for using, grievance procedures.
— An alleged incident of sexual misconduct, sexual contact, sexual abuse, and sexual harassment by a detainee or staff member.
FILING STANDARD GRIEVANCES:
You must submit grievances within five (5) business days after the incident prompting the grievance. If you are locked in your cell you may submit your grievance during scheduled out-of-cell time. Only one (1) grievance may be filled out for any single incident or concern. You may withdraw grievances at any time by submitting such notification in writing.
The primary method for submitting a grievance form is to use the kiosk in your housing area. This method will electronically submit your grievance to a shift supervisor. If you cannot use the kios [sic] or they are un-operational use this secondary method.
Obtain a grievance form from any correctional officer. Grievance forms are submitted to the shift supervisor. A grievance form should only be submitted if officers cannot help you with your grievance. You will be given a copy of the grievance with a response from the shift supervisor. If you do not get a response back the grievance may have been handled by an officer or the grievance form should not have been submitted.
RESPONSES TO GRIEVANCES:
The Detention Administrator or his designee will review grievances to determine if the issue is grievable or non-grievable and if the form was correctly filled out. Your complaint will be investigated and if a response is necessary you will receive one in a reasonable amount of time.
ANALYSIS
Defendants maintain that Murphy did not exhaust his administrative remedies as he did not submit an emergency grievance or a jail grievance regarding the allegations against them in his complaint. Defendants argue that Murphy knew how to grieve and knew how to use the system implemented by Jefferson County as evidenced by the 110 emergency grievances, 8 jail grievances, 38 jail requests, 20 medical grievances and 88 medical requests he electronically submitted by kiosk. As such, Defendants claim that he should have grieved about his foot and ankle injuries either by emergency grievances or by jail grievances rather than by medical grievances. Murphy counters, among other things, that he alerted Jefferson County of his complaints and that he followed the instructions in the Detainee Handbook by filing grievances through the kiosk complaining that his medical appointment was canceled due to his refusal to be shackled.3 Specifically, Murphy contends that both the June 1, 2016 and the June 2, 2016 medical grievances properly exhausted his administrative remedies. Further, Murphy contends that he provided sufficient detail in these grievances to put Jefferson County officials and defendants on notice of his complaints. Based on the record, the undersigned agrees with Murphy.
The record reflects that on June 1, 2016, Murphy filed a medical grievance stating that his foot was broken and that he had not been permitted to see a foot doctor.4 This grievance was sent directly to medical and did not mention Mount, Allen or May. Murphy testified that on June 2, 2016, both Mount and May cancelled his appointment when he refused to be shackled because his foot was swollen. The record also reflects that on June 2, 2016, Murphy submitted another medical grievance asking that his file reflect that he was denied his appointment because he refused to be shackled at his ankles for transport because his foot and ankle were swollen. This medical grievance also was sent directly to health care and did not mention Allen, Mount or May. Nurse Brown received the medical grievance and suggested that Murphy "talk to Captain Mount." Murphy claims that when he did not hear back from Mount or Brown, he asked his attorney Matt Vaughn to follow-up with Allen about his medical treatment. Mr. Vaughn sent a letter, via fax, to Allen on June 6, 2016 formally asking that Murphy be examined by a physician. Additionally, Mr. Vaughn exchanged emails with Mount (Allen is cc'd in a portion of the email string) regarding the requests for medical attention. For example, in an email dated June 9, 2016, from Mount to Mr. Vaughn, Mount outlines a number of key events regarding the care of Murphy, which occurred on May 22, 2016, May 24, 2016, May 27, 2016 and June 2, 2016. (Doc. 54-5, pgs. 4-5).
The Defendants argue that Murphy failed to exhaust his remedies properly because he filed medical grievances, as opposed to emergency or jail grievances. According to the Defendants, medical grievances only went to medical personnel. Because Allen, Mount and May are not mentioned in the June 1st and 2nd grievance, the Defendants assert that these individuals did not have notice of the problem. Murphy, however, was not required to identify the Defendants by name to put the jail on notice of his issues. In fact, the Detainee Handbook does not differentiate between medical grievances and other types of grievances and states that all grievances are submitted to a shift supervisor and reviewed by the Detention Administrator or his designee.
Even though the June 1st and June 2nd medical grievances do not name the Defendants, the jail was clearly on notice of Murphy's problems. For example, in the correspondence between Mount and Murphy's attorney, Mount indicates that he was advised by Nurse Brown of Murphy's injured foot on May 27, 2016 and that Murphy was not in compliance with instructions from the medical department. (Doc. 54-5, p.
5). Mount and May also made the decision to cancel Murphy's medical appointment with a specialist on June 2, 2016, because he refused to be shackled. Thus, both Mount and May knew of Murphy's need for a specialist because an appointment had been scheduled. The evidence adduced at the hearing also indicated that Murphy's feet were swollen at the time, which is the reason why Murphy refused to be shackled. As such, Mount and May clearly knew that Murphy was still having problems with his feet almost two weeks after the May 22nd incident when Murphy was injured. Furthermore, the jail never rescheduled an appointment for Murphy. Indeed, Murphy complained of that fact to the jail in medical requests that he made on June 23, 2016, June 28, 2016, July 13, 2016 and July 19, 2016. (Doc. 45-1, pgs. 85-86).
While the Defendants may have had a good reason for cancelling Murphy's appointment, the immediate question before the Court is whether the jail was on notice of Murphy's problems. Murphy filed a grievance on June 1st alerting the jail to the nature of the problems he was having with his foot. Jail officials made an appointment for Murphy to see a specialist, but cancelled it because Murphy could not be shackled. Murphy's attorney even intervened in an attempt to get a medical appointment scheduled. Yet, the appointment was never rescheduled even though Murphy made several requests to do so after the June 2nd appointment was cancelled. The purpose of exhaustion is to put the jail on notice of problems within the facility and to allow the jail the opportunity to address the problem before a lawsuit is filed. Given these facts, the Defendants have not carried their burden regarding exhaustion, and therefore, the undersigned recommends that the Court deny their motion for summary judgment.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the Court DENY Defendants' motion for summary judgment on the issue of exhaustion (Doc. 45).
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004). Any objections to the Report shall be filed on or before JJuly 8, 2019.
IT IS SO ORDERDED.
