RONALD A. GUZMAN, District Judge.
Defendant, DR. WILLIAM SELMER, by his attorneys, CHARYSH & SCHROEDER, LTD., for his motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 for plaintiff's failure to exhaust administrative remedies states:
1. Plaintiff claims defendant Selmer was deliberately indifferent to his serious medical needs by failing to properly ensure he received follow up dental care in a timely fashion after January 30, 2007.
2. Pursuant to the Prison Litigation Reform Act, "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." 42 U.S.C.A. § 1997e.
3. Plaintiff has asserted that he believes Dr. Selmer has waived this argument. However, that is not the case.
4. Failure to exhaust administrative remedies is an affirmative defense.
5. Dr. Selmer was first brought into this case in plaintiff's Third Amended Complaint. In his answer to this complaint he specifically plead the affirmative defense of plaintiff's failure to exhaust his administrative remedies. (See Answer to Third Amended Complaint attached as Exhibit A)
6. After the close of discovery, plaintiff was granted leave to file a Fourth Amended Complaint. Defendant Selmer answered this complaint on September 17, 2013. In his answer he again plead the affirmative defense of plaintiff's failure to exhaust his administrative remedies. (See Answer to Fourth Amended Complaint Attached as Exhibit B)
7. Plaintiff also appears to claim that defendant Selmer has waived this affirmative defense based on
8. However,
9. Courts in this Division of the Northern District routinely do not even address issues such as this prior to the conclusion of discovery and they are entertained in motions for summary judgment. As plaintiff cannot show any prejudice in addressing this issue now, and it was raised in the pleadings, it is properly before the Court and has not been waived.
10. Waiver only applies when there has been the voluntary or intentional relinquishment of a known right.
11. In
12. Unless a prisoner completes the administrative process by following the rules the state has established for the process, exhaustion has not occurred.
13. Illinois has a formal administrative grievance process.
14. The grievance is then submitted to a grievance officer who reviews it. The officer considers the grievance and reports his or her findings and recommendations in writing to the Chief Administrative Officer of the facility. The Chief Administrative Officer shall advise the offender of the decision in writing within 2 months after receipt of the written grievance, if reasonably feasible. (
15. If, after receiving the response of the Chief Administrative Officer, the offender still feels that the problem has not been resolved, he may appeal to the Director in writing within 30 days after the date of the decision. The director, or his designate, reviews the grievance and the responses and determines if the grievance requires a hearing or if it can be resolved without a hearing. The findings are then provided to the offender. (
16. An inmate must exhaust all available administrative remedies before filing a lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a);
17. In the present case, plaintiff has not filed any grievance against Dr. Selmer, and he has not specifically named him in any grievance. While he did file certain grievances concerning other issues, they are insufficient to exhaust his administrative remedies as to Dr. Selmer because:
18. Additionally, there is no evidence that plaintiff properly appealed his grievances to the Director. While it appears plaintiff filed an appeal as to some grievance, it was returned as being filed outside the timeframe prescribed. As plaintiff has not properly exhausted his administrative remedies, his claims against Dr. Selmer are barred.
19. A prisoner can exhaust his administrative remedies only by following the prison's administrative rules closely.
20. "Exhaustion" under the PLRA means carrying administrative grievances through to the very end, and any procedural history that falls short of this does not demonstrate exhaustion.
21. As plaintiff cannot show he has filed a grievance against Dr. Selmer, or one complaining of any conduct or lack thereof of Dr. Selmer, much less completed all of the steps regarding such grievance, judgment should be entered in Dr. Selmer's favor and against plaintiff.
WHEREFORE, defendant DR. WILLIAM SELMER, respectfully requests this Honorable Court grant his motion and enter judgment against plaintiff and in his favor and grant such other, further relief as the Court deems just and proper.
Defendant, DR. WILLIAM SELMER, by his attorneys, CHARYSH & SCHROEDER, LTD., for his answer to plaintiff's third amended complaint, states as follows:
1. On and prior to January 30, 2007 the defendant, TERRY McCANN, as warden of Stateville Correctional Center had responsibility for the management and control of all aspects of said prison, and for the protections of the constitutional rights of inmates confined therein.
2. On and prior to January 30, 2007, the Defendant, JACQUELINE MITCHELL, was a dentist who, as Administrator of the Health Care Unit at Stateville Correctional Center, had responsibility for scheduling health care services and arranging appointments for inmates to see health care professionals at Stateville Correctional Center.
3. On and prior to January 30, 2007, the Defendant OLIVER HENDERSON, was a correctional officer with the responsibility for the safe custody and movement of inmates at Stateville Correctional Center, including plaintiff, DAVID GEVAS.
4. On and prior to January 30, 2007, the Defendant MICHAEL BORKOWSKI, as a Correctional Medical Technician, had responsibility for providing medical care and services to inmates at Stateville Correctional Center, including plaintiff.
5. On and prior to September 30, 2007, the defendant DR. PARTHA GHOSH, was a physician duly licensed to practice his profession, and as Medical Director of the Health Care Unit at Stateville Correctional Center had responsibility providing and arranging for medical and dental health care and services to inmates, including the Plaintiff.
6. On and prior to January 30, 2007, the Defendant, EVARISTO AGUINALDO was a physician licensed to practice his profession, and as a physician in the Health Care Unit at Stateville Correctional Center had responsibility for providing medical care and services to inmates, including the Plaintiff.
7. On and prior to January 30, 2007, the Defendant, Dr. Selmer was a dentist licensed to practice his profession, and as such did render dental care and services to inmates at Stateville, including the Plaintiff.
8. Prior to January 30, 3007 the Plaintiff developed pain and infection in a molar and sought dental care from DR. SELMER.
9. On January 30, 2007 the Plaintiff was examined by DR. SELMER for severe pain in his right upper third molar.
10. At said time the Defendant DR. SELMER took dental x-rays and diagnosed an infection in the root of Plaintiff's right upper molar.
11. DR. SELMER, then informed the Plaintiff that a root canal procedure was needed, but stated that the Illinois Department of Corrections rules do not allow for root canal procedures, and that the molar would have to be extracted.
12. The dental x-ray taken on January 30, 2007 showed a large abscess of the root of the upper right molar.
13. On January 30, 3007, DR. SELMER prescribed Ibuprofen for pain relief and Penicillin, an antibiotic, for the infection in Plaintiff's right upper molar.
14. On January 30, 2007, DR. SELMER, informed Plaintiff that Plaintiff would return when the medications were completed, and the molar would be extracted.
15. DR. SELMER wrote in the dental chart that Plaintiff's molar needed to be extracted at the next visit.
16. According to the Administrative Directive of the Illinois Department of Corrections, No. 05-03-102, an abscessed tooth is an emergency, and when an inmate requests dental care for a condition which is not routine, he should be seen by dental personnel within 14 days of such request, and for an emergency should be seen the next day after the emergency occurs.
17. Plaintiff completed the pain and antibiotic medication prescribed on January 30, 2007, but did not receive the follow up care DR. SELMER recommended.
18. The abscess in the right upper molar worsened, and a major swelling formed above the root, causing extreme pain and inability to eat and sleep comfortably.
19. During a period from approximately February 18, 2007 through March 11, 2007, the Plaintiff repeatedly informed Defendant MICHAEL BORKOWSKI, of his serious dental need, his severe pain and abscess, and the recommendation that he return to DR. SELMER after completing the pain and antibiotic medications, showed MICHAEL BORKOWSKI the major swelling of puss causing extreme pain and inability to eat and sleep properly, and the visible swelling on the right side of his face, and requested defendant assist him in seeing DR. SELMER.
20. At that time Defendant BORKOWSKI laughed and told Plaintiff, "you should know by now that I am not going to help you."
21. On March 11, 2007, Plaintiff wrote to the dental office requesting immediate treatment, and sent it by institutional mail.
22. On March 15, 2007 Plaintiff saw Defendant DR. EVARISTO AGUINALDO at MD sick call, and informed him of the abscessed tooth, the severe pain and inability to eat and sleep properly, DR. SELMER's recommendation that Plaintiff return for extraction of his molar and his need for emergency dental treatment.
23. At said time Defendant DR. EVARISTO AGUINALDO refused to assist the Plaintiff in obtaining emergency dental care.
24. On March 18 and March 25, 2007, Plaintiff wrote grievances requesting immediate treatment for the extremely painful abscess in his molar, and requested emergency review by Defendant, TERRY McCANN, as warden.
25. On March 27, 2007, plaintiff was unable to report to his job assignment due to extreme pain, and inability to eat and sleep normally, because of the abscessed molar, and was issued a disciplinary report.
26. Plaintiff was not scheduled to see the dentist for follow up treatment until March 28, 2007.
27. On March 28, 2007, Defendant OLIVER HENDERSON, refused to allow Plaintiff out of his cell for his dental appointment, although Plaintiff informed Defendant of the abscessed molar, his extreme pain and inability to eat and sleep normally, and his need for emergency care.
28. On March 28, 2007 plaintiff wrote to the dental office informing them that he was not allowed out of his cell for the appointment and requested another appointment on an emergency basis, sending it by institutional mail.
29. On March 29, 2007 Plaintiff again wrote to the dental office on the copy of his dental pass for March 28, 2007, requesting an emergency appointment, sending it by institutional mail.
30. Although DR. SELMER knew that the Plaintiff's molar was abscessed and was an emergency condition, and knew that an appointment for an emergency condition was to be scheduled the next day after an emergency occurred, DR. SELMER took no action to have an emergency dental appointment scheduled.
31. Although his grievances explained the severe pain and infection in his molar, and the need for emergency care, and although TERRY McCANN knew that an abscessed tooth is a dental emergency under Administrative Directives, on April 12, 2007 the Plaintiff's grievances of March 18 and March 25, 2007, were denied emergency review by Defendant TERRY McCANN.
32. On April 27, 2007 the defendant JACQUELINE MITCHELL, received plaintiff's grievances of March 18 and March 25, 2007.
33. As a dentist, Defendant, JACQUELINE MITCHELL, knew that an abscessed molar is an emergency condition requiring urgent care, and knew that such an abscess causes extreme pain and difficulty eating and sleeping.
34. Although Defendant MITCHELL knew of the Administrative Directive and was responsible for scheduling an emergency appointment with the dentist for Plaintiff, Defendant MITCHELL did not do so, and instead referred the grievances to DR. PARTHA GHOSH.
35. Although DR. PARTHA GHOSH was responsible under the Administrative Directive for providing emergency dental care and knew that an abscessed tooth was an emergency condition, when he received the grievances he took no action to arrange for a dental appointment, instead responding to the grievances that "His medical records show he saw a dentist on 1/3/0/07. He was a no show for his appointment on 3/28/07. He is advised to contact DR. MITCHELL for any dental issues."
36. On May 31, 2007 the grievance officer received Plaintiff's grievances of March 18 and March 25, 2007 and Dr. GHOSH's response and stated: "It appears that his grievance issue has been resolved. No further action necessary at this time."
37. On June 8, 2007 Plaintiff's Counselor wrote, "Copies sent to Dr. Ghosh 4/12/07 + 4/27/07, no response received from Dr. Ghosh. Original forwarded to Grievance Officer, copy to inmate."
38. On June 12, 2007 the Defendant TERRY McCANN, took no action to assist Plaintiff in obtaining emergency dental care and agreed with and concurred with the grievance officer, although he knew that Plaintiff had an emergency dental need, knew that both DR. MITCHEEL and DR. GHOSH had disregarded Plaintiff's emergency need, and knew that Plaintiff's constitutional right to emergency dental care was being violated.
39. Plaintiff did not receive the necessary follow up emergency dental care prescribed by DR. SELMER until June 5, 2007, over four (4) months after he completed the medications and was due to return to DR. SELMER for extraction of the molar.
40. On June 5, 2007 Plaintiff returned to see DR. SELMER, and again DR. SELMER informed him that the IDOC rules do not allow for root canal procedures on a molar. Plaintiff requested to see the rule in writing, but after searching for about five (5) minutes, DR. SELMER was unable to find it.
41. Because DR. SELMER would not perform a root canal Plaintiff was left with no choice but to agree to extraction of the molar.
42. On June 5, 2007 DR. SELMER extracted the infected right upper molar.
43. On July 10, 2007 Plaintiff received the March 18 and March 25 grievances with no counselor's responses, the counselor's letter to Defendant DR. GHOSH, requesting him to review and respond, DR. GHOSH's response and memorandum received by the grievance officer on May 31, 2007.
44. On the same date, July 10, 2007, Plaintiff signed, dated and timely appealed his grievances to the Administrative Review Board.
45. On October 16, 2007 the Administrative Review Board denied Plaintiff's appeal of his March 18 and March 25, 2007, grievances.
46. The Defendants had the duty and the power to obtain the necessary emergency dental care for Plaintiff and refused to do so with reckless disregard for the Plaintiff's suffering and constitutional right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution, as well as for the safety and health of the Plaintiff.
47. In committing the wrongs complained to, the Defendants caused the plaintiff to suffer excruciating pain for a prolonged period of time, which inflicted cruel and unusual punishment upon him.
48. As a direct and proximate result of the Defendants' misconduct, Plaintiff suffered great pain and loss of ability to eat and sleep normally, emotional distress, loss of a normal life and deprivation of his constitutional rights.
Defendant makes no response to Count II of plaintiff's Third Amended Complaint as it is not directed against him. To the extent any allegations are made against him, they are denied.
Defendant makes no response to Count III of plaintiff's Third Amended Complaint as it is not directed against him. To the extent any allegations are made against him, they are denied.
Defendant makes no response to Count IV of plaintiff's Third Amended Complaint as it is not directed against him. To the extent any allegations are made against him, they are denied.
WHEREFORE, defendant DR. WILLIAM SELMER, denies that the plaintiff, DAVID GEVAS, is entitled to judgment against him in any amount whatsoever, or any other relief requested in plaintiff's third amended complaint, and asks that the plaintiff's third amended complaint be dismissed and that judgment be entered in his favor on the remaining pleadings and he be granted such other relief as the Court deems just and proper.
1. The defendant affirmatively states that the plaintiff's amended complaint fails to state a claim upon relief can be granted pursuant to 42 U.S.C. § 1983 involving rights secured by the United States Constitution as the conduct claimed as actionable does not rise to the standard of seriousness required pursuant to that statute.
2. At all times relevant herein, this defendant acted in good faith in the performance of his official duties and without violating plaintiff's clearly established statutory or constitutional rights of which a reasonable person would have known. Defendant is therefore protected from suit by the doctrine of qualified immunity.
3. Plaintiff's claims are barred to the extent plaintiff has failed to exhaust his administrative remedies.
Defendant, DR. WILLIAM SELMER, by his attorneys, CHARYSH & SCHROEDER, LTD., for his answer to plaintiff's fourth amended complaint, states as follows:
1. This complaint is filed pursuant to 42 U.S.C. § 1983, commonly known has the Civil Rights Act, and the jurisdiction of the Court is conferred by 20 U.S.C. §§ 1331 and 1367.
2. Plaintiff was at all material times an inmate at Stateville Correctional Center with register number B 41175, and is presently confined at Stateville Correctional Center.
3. On and prior to the dates of events complained of herein, the Defendant, Dr. Mitchell, was the Health Care Unit Administrator at Stateville Correctional Center, in Joliet, Illinois, in the Northern District of Illinois
4. On and prior to the dates of the events complained of herein, the Defendant, Dr. Selmer was employed by Wexford Health Sources, Inc. as a dentist at Stateville Correctional Center, in Joliet, Illinois, in the Northern District of Illinois.
5. The defendants are sued in an individual capacity.
6. On and prior to January 30, 2007, the Defendant, Dr. Mitchell, was a dentist who, as Administrator of the Health Care Unit at Stateville Correctional Center, had responsibility for scheduling health care services and arranging appointments for inmates to see health care professionals at Stateville Correctional Center.
7. On and prior to January 30, 2007, the Defendant, Dr. Selmer was a dentist licensed to practice his profession, and as such did render dental care and services to inmates at Stateville, including the Plaintiff.
8. Prior to January 30, 3007 the Plaintiff developed pain and infection in a molar and sought dental care from Dr. Selmer.
9. On January 30, 2007 the Plaintiff was examined by Dr. Selmer for severe pain in his right upper third molar.
10. At said time the Defendant Dr. Selmer took dental x-rays and diagnosed an infection in the root of Plaintiff's right upper molar.
11. Dr. Selmer, then informed the Plaintiff that a root canal procedure was needed, but stated that the Illinois Department of Corrections rules do not allow for root canal procedures, and that the molar would have to be extracted.
12. The dental x-ray taken on January 30, 2007 showed a large abscess of the root of the upper right molar.
13. On January 30, 3007, Dr. Selmer prescribed Ibuprofen for pain relief and Penicillin, an antibiotic, for the infection in Plaintiff's right upper molar.
14. On January 30, 2007, Dr. Selmer, informed Plaintiff that Plaintiff would return when the medications were completed, and the molar would be extracted.
15. Dr. Selmer wrote in the dental chart that Plaintiff's molar needed to be extracted at the next visit.
16. According to the Administrative Directive of the Illinois Department of Corrections, No. 05-03-102, an abscessed tooth is an emergency, and when an inmate requests dental care for a condition which is not routine, he should be seen by dental personnel within 14 days of such request, and for an emergency should be seen the next day after the emergency occurs.
17. Plaintiff completed the pain and antibiotic medication prescribed on January 30, 2007, but did not receive the follow up care Dr. Selmer recommended.
18. The abscess in the right upper molar worsened, and a major swelling formed above the root, causing extreme pain and inability to eat and sleep comfortably.
19. On March 19 and March 25, 2007, Plaintiff wrote grievances requesting immediate treatment for the extremely painful abscess in his molar.
20. On March 27, 2007, plaintiff was unable to report to his job assignment due to extreme pain, and inability to eat and sleep normally, because of the abscessed molar, and was issued a disciplinary report.
21. Plaintiff was not scheduled to see the dentist for follow up treatment until March 28, 2007.
22. On March 28, 2007 plaintiff wrote to the dental office informing them that he was not allowed out of his cell for the appointment and requested another appointment on an emergency basis, sending it by institutional mail.
23. On March 29, 2007 Plaintiff again wrote to the dental office on the copy of his dental pass for March 28, 2007, requesting an emergency appointment, sending it by institutional mail.
24. Although Dr. Selmer knew that the Plaintiff's molar was abscessed and was an emergency condition, and knew that an appointment for an emergency condition was to be scheduled the next day after an emergency occurred, Dr. Selmer took no action to have an emergency dental appointment scheduled.
25. On April 27, 2007 the defendant Dr. Mitchell, received plaintiff's grievances of March 18 and March 25, 2007.
26. As a dentist, Defendant, Dr. Mitchell, knew that an abscessed molar is an emergency condition requiring urgent care, and knew that such an abscess causes extreme pain and difficulty eating and sleeping.
27. Although Defendant, Dr. Mitchell knew of the Administrative Directive and was responsible for scheduling an emergency appointment with the dentist for Plaintiff, Defendant, Dr. Mitchell did not do so.
28. Plaintiff did not receive the necessary follow up emergency dental care prescribed by Dr. Selmer until June 5, 2007, over four (4) months after he completed the medications and was due to return to Dr. Selmer for extraction of the molar.
29. On June 5, 2007 Plaintiff returned to see Dr. Selmer, and again Dr. Selmer informed him that the IDOC rules do not allow for root canal procedures on a molar. Plaintiff requested to see the rule in writing, but after searching for about five (5) minutes, DR. SELMER was unable to find it.
30. Because Dr. Selmer would not perform a root canal Plaintiff was left with no choice but to agree to extraction of the molar.
31. The Defendants had the duty and the power to obtain the necessary emergency dental care for Plaintiff and refused to do so with reckless disregard for the Plaintiff's suffering and constitutional right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution, as well as for the safety and health of the Plaintiff.
32. In committing the wrongs complained to, the Defendants caused the plaintiff to suffer excruciating pain for a prolonged period of time, which inflicted cruel and unusual punishment upon him.
33. As a direct and proximate result of the Defendants' misconduct, Plaintiff suffered great pain and loss of ability to eat and sleep normally, emotional distress, loss of a normal life and deprivation of his constitutional rights.
34. Plaintiff realleges and incorporates by reference paragraphs 1 to 33 above.
35. The proper dental standard of care required by Defendants Dr. Mitchell and Dr. Selmer to obtain and provide the necessary dental care for plaintiff within about a week of the January 30, 2007.
36. Defendants, alternatively, through lack of skill or negligence, failed to obtain and provide the necessary dental care for Plaintiff within about a week of the January 30, 2007 diagnosis.
37. As a direct and proximate cause of the Defendants' misconduct, Plaintiff suffered great pain and loss of ability to eat and sleep normally, emotional distress, and loss of a normal life.
WHEREFORE, defendant DR. WILLIAM SELMER, denies that the plaintiff, DAVID GEVAS, is entitled to judgment against him in any amount whatsoever, or any other relief requested in plaintiff's fourth amended complaint, and asks that the plaintiff's fourth amended complaint be dismissed and that judgment be entered in his favor on the remaining pleadings and he be granted such other relief as the Court deems just and proper.
1. The defendant affirmatively states that the plaintiff's amended complaint fails to state a claim upon relief can be granted pursuant to 42 U.S.C. § 1983 involving rights secured by the United States Constitution as the conduct claimed as actionable does not rise to the standard of seriousness required pursuant to that statute.
2. At all times relevant herein, this defendant acted in good faith in the performance of his official duties and without violating plaintiff's clearly established statutory or constitutional rights of which a reasonable person would have known. Defendant is therefore protected from suit by the doctrine of qualified immunity.
3. Plaintiff's claims are barred to the extent plaintiff has failed to exhaust his administrative remedies.
4. In Count II of this Fourth Amended Complaint, plaintiff seeks to recover for claimed medical negligence under Illinois law. To the extent plaintiff is claiming punitive and exemplary damages in Count II, such damages are not recoverable in such a medical malpractice or medical negligence claim pursuant to 735 ILCS 5/2-1115.
5. It was the duty of the plaintiff, DAVID GEVAS, to use ordinary care for his own safety before and at the time of the occurrences alleged in the complaint.
6. Notwithstanding the aforementioned duty, DAVID GEVAS committed the following negligent acts and/or omissions at the time and place of the occurrences alleged in the fourth amended complaint:
7. Section 2-1116 of the Illinois Code of Civil Procedure, which applies to plaintiff's state law medical negligence claim, provides:
In all actions on account of bodily injury or death or physical damage to property based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damages for which recovery is sought, but any damages allowed shall be diminished in the proportion of the amount of fault attributable to the plaintiff.
8. If it is found that the defendant acted negligently, which the defendant denies, then the plaintiff's cause of action in Count II is barred, as the contributory fault of DAVID GEVAS is more than 50% of the proximate cause of the injury or damages for which recovery is sought.
9. If it is found that the defendant acted negligently, which the defendant denies, and that DAVID GEVAS' contributory fault did not exceed 50% of the proximate cause of the injury or damages for which recovery is sought, then plaintiffs' recovery sought in Count II should be reduced in the proportion to the amount of the fault attributable to him.
