MARK A. BEATTY, Magistrate Judge.
The matter has been referred to United States Magistrate Judge Mark A. Beatty by United States Chief District JudgeNancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for Summary Judgment filed by Defendant Alfonso David on September 18, 2018 (Doc. 44). It is recommended that the District Court adopt the following findings of fact and conclusions of law, and the Motion for Summary Judgment (Doc. 44) be denied.
Plaintiff James Hotchkiss filed this pro se civil rights lawsuit on July 6, 2016, pursuant to 42 U.S.C. § 1983 alleging that Dr. Alfonso David and a nurse at Shawnee Correctional Center were deliberately indifferent to his serious medical needs (Doc. 1). More specifically, Hotchkiss alleges he has an artificial left knee cap and a steel rod in his leg, and his left leg is shorter than his right (Doc. 1; Doc. 27-1, p. 2). As a result, he suffers from chronic, severe pain in his left leg and hip and has difficulty maintaining his balance (Doc. 1; Doc. 27-1, p. 2). According to Hotchkiss, the doctor and the nurse failed to adequately treat his pain and failed to address the underlying cause of his pain.
After screening the complaint pursuant to 28 U.S.C. § 1915A(a), District Judge Michael Reagan determined that the case was frivolous and failed to state a claim; the case was dismissed with prejudice and Hotchkiss was assessed a "strike" (Doc. 7).
Defendant David filed a motion for summary judgment on the issue of exhaustion of administrative remedies on September 18, 2018 (Doc. 44). Hotchkiss filed documents that were construed as a response in opposition to the motion for summary judgment (Docs. 48, 49; see also Doc. 51). He later filed another document that also addresses Defendant's motion for summary judgment (Doc. 52).
Summary judgment is proper if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing there is a genuine issue. 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 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).
Normally, the court cannot resolve factual disputes on a motion for summary judgment; they must be decided by a jury. E.g., Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014) ("[A] trial is the standard means of resolving factual disputes . . . .") The opposite is true, however, when the motion for summary judgment pertains to a prisoner's failure to failure to exhaust. The Seventh Circuit has instructed courts to conduct an evidentiary hearing in order to resolve contested issues of fact regarding a prisoner's purported failure to exhaust. Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)). Accord Roberts, 745 F.3d at 234. However, where there is no disputed issue of fact, no hearing is necessary.
The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit about prison conditions unless and until he has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011)). In order for a prisoner to properly exhaust his or her administrative remedies, the prisoner must "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Exhaustion is an affirmative defense, which the defendants bear the burden of proving. Pavey, 663 F.3d at 903 (citations omitted).
As an inmate in the IDOC, Hotchkiss was required to follow the grievance process outlined in the Illinois Administrative Code to exhaust his claims. 20 ILL. ADMIN. CODE § 504.800, et seq. (2003).
Though the Seventh Circuit requires strict adherence to the exhaustion requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), an inmate is required to exhaust only those administrative remedies that are available to him. 42 U.S.C. § 1997e(a). Administrative remedies become "unavailable" to prisoners primarily when prison officials fail to respond to a properly filed grievance or when prison officials' "affirmative misconduct" thwarts a prisoner from exhausting. E.g., Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dole, 438 F.3d at 809.
As an initial matter, the scope of Hotchkiss's deliberate indifference claim must be clarified. After the case was remanded from the Seventh Circuit, the Court stated that Hotchkiss was proceeding on an Eighth Amendment claim "on the theory that [Dr.] David subjected him to an unnecessary 16-month delay of treatment in violation of the Eighth Amendment by prescribing medication for his hip and knee pain in lieu of providing Plaintiff with the orthopedic shoes that Plaintiff had been requesting since his placement at Shawnee." (Doc. 28). Dr. David narrowly interpreted the Court's statement to mean that the failure to provide orthopedic (orthotic) shoes was the crux of Hotchkiss's claim.
After re-reviewing Hotchkiss's complaint and the Seventh Circuit's mandate, (Docs 1; Doc. 27-1), however, the Court believes his claim is more expansive than has been characterized. The Seventh Circuit explained that Hotchkiss "stated a plausible claim that the doctor prolonged and exacerbated Hotchkiss's leg and hip pain and other symptoms by continuing an ineffective course of treatment." (Doc. 27-1, p. 2). It is clear that the ineffective and delayed course of treatment encompassed more than a refusal to provide Hotchkiss with orthotic shoes (see Doc. 27-1, pp. 2-5). Rather, Hotchkiss believes he received constitutionally inadequate medical care for his hip and leg issues for a variety of reasons (see id.). For example, Hotchkiss alleges that in response to his repeated complaints of pain over the course of many months, Dr. David did nothing but prescribe pain medication, which was insufficient to relieve his pain (Id.). Dr. David refused to thoroughly examine Hotchkiss or take x-rays to determine the cause of his pain and also refused to provide Hotchkiss with other measures that he requested in an effort to address his pain and balance issues, such as a shoe lift, orthotic shoes, a slow-walk permit, a low-gallery permit, and a cane (Id.).
These allegations cannot be fairly distilled down to "Dr. David prescribed Hotchkiss pain medication instead of providing him with the orthotic shoes that he wanted." That's only one part of the equation. The claim is more accurately characterized as an Eighth Amendment claim against Dr. David based on the theory that the doctor prolonged and exacerbated Hotchkiss's leg and hip pain by pursuing an ineffective course of treatment while refusing to adequately evaluate and address his underlying condition, pain, and balance issues.
Defendant provided the Court with the grievance records from Shawnee and the Administrative Review Board (see Docs. 45-1, 45-2). According to these records, Hotchkiss filed only two grievances: one dated June 29, 2015, and one dated February 6, 2016 (see Docs. 45-1, 45-2). The Court agrees with Defendant these two grievances are insufficient to exhaust as to the pending deliberate indifference claim (see Doc. 45). The June 29th grievance concerns a television that Hotchkiss purchased and is therefore irrelevant to the claim in this case (see Doc. 45-1, pp. 16-25; Doc. 45-2, pp. 1-4). The February 6th grievance is likewise insufficient to exhaust because, although it pertains to Hotchkiss's medical treatment for his hip and leg pain, Hotchkiss admits he submitted this grievance directly to the ARB before obtaining responses from his counselor, the grievance officer, and the warden (Doc. 45-1, pp. 3-5; Doc. 49, p. 21). See Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018) (describing the three-step process for exhausting a grievance prior to April 2017); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) ("To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require.")
But these two grievances are not the end of the story. The cumulative counseling summary from Shawnee, which was provided by Defendant, demonstrates there were a number of grievances aside from the two just mentioned that Hotchkiss submitted to his counselor that may be relevant to the claims in this case (Doc. 45-3). Defendant acknowledges these grievances but summarily assumes that Hotchkiss received the responses from his counselor but did not take them any further by submitting them to the grievance officer, the warden, or the ARB (Doc. 45, p. 8).
For his part, Hotchkiss indicated in his response to the motion for summary judgment that there were still more grievances he submitted that went unanswered by his counselor, none of which were mentioned in any of the records provided by Defendant (Doc. 49). Hotchkiss indicated he kept a complete file of every request, grievance, or letter he submitted, and he previously submitted a copy of this file along with his complaint in this matter (Doc. 49, p. 16; Doc. 4). This file demonstrates that Hotchkiss meticulously and exhaustively tracked every grievance, letter, medical request, records request, etc. that he submitted, in part by making and keeping a handwritten duplicate of each one that he wrote. Although Hotchkiss's records were available to Defendant before he filed his motion for summary judgment, Defendant did not acknowledge them in his motion, let alone discuss them (see Doc. 45). Defendant also did not bother to file a reply brief to address these records after Hotchkiss brought them up in his response.
Based on the cumulative counseling summary and Hotchkiss's records, the Court finds the following grievances filed between October 2015 and July 2016
According to Hotchkiss, the first grievance he filed regarding inadequate medical care for his hip and leg pain was on October 8, 2015 (Doc. 49, pp. 3-4, 31). The records Hotchkiss submitted with the complaint include a handwritten copy of this grievance (Doc. 4-5, pp. 4-5). In the grievance, Hotchkiss complains that Dr. David refused his request to renew his low bunk permit and to get a "quad stick" (a cane) (Id.). He further complains he was not receiving any medication or other relief for his pain (Id.). Hotchkiss maintains he never received a response from his counselor (Doc. 49, pp. 5, 15-16, 31), which is the same thing he said in subsequent grievances, as well as, in at least one letter to the warden (Doc. 4-13, pp. 5-8; Doc. 45-1, pp. 3-5; Doc. 4-5, pp. 14-15).
Hotchkiss claims that because he never received a response to his October 8th grievance, he submitted another grievance to his counselor on October 21, 2015 (Doc. 49, pp. 5, 31). Once again, the records that Hotchkiss submitted with the complaint include a handwritten copy of this grievance (Doc. 4-5, pp. 14-15). In the grievance, he repeats his complaint about Dr. David refusing his request to renew his low bunk permit (Id.). Hotchkiss maintains he never received a response from his counselor (Doc. 49, pp. 15-16), which is the same thing he said in subsequent grievances, as well as, in at least one letter to the warden (Doc. 4-13, pp. 5-8; Doc. 45-1, pp. 3-5).
Hotchkiss claims he submitted a grievance to his counselor on November 21, 2015 (Doc. 49, pp. 4-5, 31). Records that Hotchkiss submitted with the complaint include a handwritten copy of this grievance (Doc. 4-8, pp. 2-3). In the grievance, Hotchkiss complains that Dr. David discontinued his low bunk permit and he was then assigned a cell on the top gallery (Id.). Hotchkiss has to climb two flights of stairs several times a day in order to get to his cell, which exacerbates the pain in his left hip and knee (Id.). Hotchkiss maintains this grievance was not responded to by his counselor (Doc. 49, pp. 15-16), which is the same thing he said in subsequent grievances, as well as, in at least one letter to the warden (Doc. 4-13, pp. 5-8; Doc. 45-1, pp. 3-5).
Hotchkiss claims he submitted a grievance to his counselor on December 19, 2015 (Doc. 49, pp. 6-10, 31). Records that Hotchkiss submitted with the complaint include a copy of this grievance as well as a handwritten duplicate of the grievance (Doc. 4, pp. 7-12; Doc. 4-9, pp. 10-13). In the grievance, Hotchkiss complains that he "has not been treated properly for the injur[ies] he suffers from." Specifically, he has been denied a slow walk permit, a low bunk permit, a quad stick, and pain medication. He asked for a complete physical and x-rays to determine the cause of his pain. He also indicated that he had submitted several grievances pertaining to this issue but he never received a response. Hotchkiss maintains this grievance was not responded to by his counselor (Doc. 49, pp. 9-10, 15-16), which is the same thing he said in subsequent grievances, as well as, in at least one letter to the warden (Doc. 4-13, pp. 5-8; Doc. 45-1, pp. 3-5). However, the records that Hotchkiss submitted with his complaint include a "memorandum" from the "grievance liaison" dated December 22, 2015, which indicates that grievance was being returned to Hotchkiss because he must use the "proper grievance form" for "all pages" (some pages of his grievance were written on loose-leaf paper) and because the grievance must be completed in ink, not pencil (Doc. 4, p. 7). There is no indication as to whether Hotchkiss attempted to resubmit this grievance.
Hotchkiss claims he then submitted a grievance to his counselor on December 25, 2015, complaining, in part, that he was not receiving the proper medication or proper medical treatment despite his repeated requests (Doc. 49, pp. 10, 31). Hotchkiss maintains this grievance was not responded to by his counselor (Doc. 49, pp. 15-16), which is the same thing he said in subsequent grievances, as well as, in at least one letter to the warden (Doc. 4-13, pp. 5-8; Doc. 45-1, pp. 3-5).
This grievance was not mentioned by Hotchkiss in his response to the motion for summary judgment (see Doc. 49). However, a copy of this grievance was included in the records that he submitted with the complaint (Doc. 4, pp. 1-2; Doc. 4-14, pp. 1-2). In this grievance, Hotchkiss indicates that he is having an issue with inadequate medical care that has been ongoing for seven months. He said he is in constant pain and the only thing the doctor does is give him pain medication, which is ineffective. He asked for x-rays to be taken to determine the cause of his pain. The box on the grievance form reserved for the counselor's response indicates that Counselor R. Smith received the grievance on April 13, 2016—nearly a month after Hotchkiss drafted and dated it—and wrote a response that same day (Doc. 4, p. 1). The counselor also checkmarked the box instructing Hotchkiss to submit the grievance to the grievance officer (see id.). Notably, however, there is no entry in the cumulative counseling summary on or about April 13, 2016, indicating that the grievance was responded to and returned to Hotchkiss (see Doc. 45-3, p. 1).
This grievance was not mentioned by Hotchkiss in his response to the motion for summary judgment (see Doc. 49). However, a copy of this grievance was included in the records that he submitted with the complaint in this case (Doc. 4, pp. 3-4; Doc. 4-14, pp. 9-11). In this grievance, Hotchkiss indicates that he has not yet received the results of the x-rays that were taken on March 21st. He complains about that the delay is prolonging his pain and suffering. The box on the grievance form reserved for the counselor's response indicates that Counselor L. Allen received the grievance on April 11th and responded on May 2nd (Doc. 4, p. 3). The cumulative counseling summary likewise shows that on May 2, 2016, Counselor Allen used the institutional to send Hotchkiss a response to a grievance concerning "health care" (Doc. 45-3). It is unclear whether any further action was taken.
This grievance was not mentioned by Hotchkiss in his response to the motion for summary judgment (see Doc. 49). However, a copy of this grievance was included in the records that Hotchkiss submitted with the complaint in this case (Doc. 4, pp. 5-6; Doc. 4-14, pp. 13-14). In the grievance, Hotchkiss indicates that he has severe pain in his left hip, knee, and heel. He indicates that he was seen at nurse sick call approximately one week earlier and the nurse made notes to be reviewed by the nurse practitioner or Dr. David. And even though his file was flagged, he still had not been seen by the doctor.
The cumulative counseling summary shows that on April 8, 2016, Counselor Lisa Allen used the institutional to send Hotchkiss a response to a grievance concerning "health care," (Doc. 45-3), which could have potentially been the April 6th grievance.
The Court turns first to the grievances Hotchkiss allegedly submitted to his counselor on October 8, 2015, on October 21, 2015, on November 21, 2015, and on December 25, 2015. Hotchkiss cited to his own handwritten records as proof that he submitted these grievances but did not receive any responses. In these grievances, Hotchkiss complains about the inadequate medical care he received from Defendant for his leg and hip pain. Defendant did not provide any argument or competent evidence to refute or deny Hotchkiss's evidence. Nor did Defendant dispute that the content of these grievances is sufficient to exhaust as to Hotchkiss's pending claim in this case. As such, the Court considers it undisputed that Hotchkiss submitted four grievances that went unanswered. FED. R. CIV. P. 56(e)(2) ("If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion."). See also Bankston v. Simmons, No. 3:17-CV-722-NJR-DGW, 2018 WL 4002057, at *3 (S.D. Ill. Aug. 22, 2018) (finding no factual dispute where plaintiff provided evidence that he submitted a grievance that went unanswered and defendant failed to file a reply brief or otherwise refute plaintiff's evidence); Blakes v. Baker, No. 13-3307, 2015 WL 300459, at *4 (C.D. Ill. Jan. 22, 2015) (finding no factual dispute where plaintiff submitted evidence that warden did not respond to his grievance within two months and defendant failed to provide any argument or competent evidence to refute plaintiff); Saiger v. Funk, No. 13-CV-3298, 2014 WL 3868223, at *3 (C.D. Ill. Aug. 6, 2014) (finding no factual dispute where the plaintiff's provided sworn statement that he filed a grievance that went unanswered and the defendant failed to refute plaintiff's statement with any competent evidence). Cf. Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014) ("A swearing contest requires an evidentiary hearing to resolve . . . .").
As no disputed issue of material fact exists, the Court finds that a Pavey hearing is unnecessary. Prison officials' failure to respond to Hotchkiss's grievances regarding his medical care rendered the administrative grievance process unavailable to him and he is therefore deemed to have exhausted his administrative remedies. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). Accordingly, Defendant Alfonso David has failed to carry his burden and establish as a matter of law that Hotchkiss failed to exhaust his administrative remedies, and Dr. David is not entitled to summary judgment on the issue of exhaustion. In light of this conclusion, the Court need not address the other grievances mentioned above.
Based on the evidence in the record and arguments proffered by the parties, it is recommended that the Court
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b),
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).
