REPORT AND RECOMMENDATION

DONALD G. WILKERSON, Magistrate Judge.

This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy 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 question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997e(a). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment based on Exhaustion filed by Defendant Travis James on March 6, 2018 (Doc. 36) be DENIED, that the Motion for Summary Judgment filed by Defendant Jake Brookhart on March 19, 2018 (Doc. 43) be DENIED and that the Court adopt the following findings of fact and conclusions of law.

INTRODUCTION

On July 31, 2017, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 related to a medical condition that developed on January 28, 2017 while he was incarcerated at the Robinson Correctional Center. This condition turned out to be a number of ulcers that had ruptured simultaneously, causing internal bleeding that required emergency treatment. During the time period of January 28, 2017 to February 27, 2017, Plaintiff alleges that Defendants Rice and James, who are medical personnel, were deliberately indifferent to his medical needs when he sought help from them (Counts 1 and 3). Plaintiff further claims that Defendant Brookhart, an internal affairs officer, threatened him with retaliation on April 10, 2017 if he filed a lawsuit about these events.

Only Defendants James and Brookhart seek summary judgment on the issue of whether Plaintiff exhausted his administrative remedies. A hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), was held on April 26, 2018 in which Plaintiff appeared by video-conference and Defendants appeared by counsel.

FINDINGS OF FACT

The parties agree that Plaintiff filed grievances on February 23, 2017 and March 24, 2017 related to his medical care and potentially related to Defendant James. It should be noted that Plaintiff's only claim against Defendant James is for an event on February 23, 2017. While Plaintiff never was treated by James, he claims that James should have treated him that evening instead of merely referring him to the doctor the following Monday, February 27, 2017.1

In a February 23, 2017 grievance, Plaintiff described the events of that day and the persons involved (Doc. 37-1, pp. 157, 171-173): He stated that he asked C/O Kocher to contact the Healthcare Unit (HCU) because he had blood in his stool. While Nurse Stephens told him to come the next day, when the doctor would be in, she previously told Plaintiff to go to the HCU if he had blood in his stool. Therefore, he went to the HCU with a stool sample and Nurse Stephens again said there was nothing that she could do that day. Later that day, Plaintiff went back to the HCU and told Nurse Cummings of his recent stomach infection — she directed him to provide stool samples for the next three days. There is no mention of Defendant James in this grievance.

The grievance officer responded on March 10, 2017 and the Warden concurred with denying the grievance on the same day. Plaintiff appealed this grievance to the Administrative Review Board (ARB) on March 30, 2017 which upheld the prisons decision on May 2, 2017.

Plaintiff provided another grievance dated February 23, 2017 but signed on September 29, 2017 which contains no institutional response but which was received by the ARB on October 10, 2017 (Doc. 47, p. 7). In this grievance, Plaintiff stated that "Nurse Cummings told P.A. James about my situation and left P.A. James a note to see me that night. PA James left a note stating he will let Dr. Shah deal with me on Monday." Plaintiff requested that his medical needs be addressed. In responding to this grievance, on October 17, 2017, that ARB indicated that it was untimely (Doc. 47, p. 6).

At the hearing, Plaintiff stated that this grievance was drafted on September 29, 2017 when he was housed at the East Moline Correctional Center. He further relayed that the grievance was a reproduction of one that he had submitted on February 23, 20172 while he was housed at Robinson CC and for which he did receive a grievance officer's response.3 However, when he sent that grievance to the ARB in May 2017, he did not receive a response from the ARB.4 He also did not copy the grievance prior to submitting it to the ARB. The Court finds Plaintiff credible in his statement that he submitted the grievance with the grievance officer's and Warden's response to the ARB but that it was not responded to by the ARB.

On March 24, 2017, Plaintiff submitted three grievances in which he complained that various administrative and high level personnel failed to ensure that he received adequate medical care from the HCU. The first grievance refers to Warden Rains, the second to HCU Administrator Phil Martin, and the third is about Director of Nursing Slichenmeyer (Doc. 37-1, pp. 143-148). While the grievances mention previous encounters with the HCU and other grievances5, Plaintiff does not name any person other than these three individuals. Plaintiff's counselor responded to all three grievances on April 6, 2017. The grievance officer responded to all three grievances on May 1, 2017 and Plaintiff appealed to the ARB which received the grievances on May 30, 2017 (Doc. 37-1, p. 142). The ARB responded on July 7, 2017 that Plaintiff's medical concerns were addressed in prior responses and that his grievances were untimely. There do not appear to be any other grievances related to the care Plaintiff received (or didn't receive) from Defendant James.

As indicated above, Plaintiff claims that Defendant Brookhart threatened him around April 10, 2017. The parties agree that Plaintiff submitted a 4 page grievance, that he dated June 3, 2017, in which he complained that Defendant Brookhart told him that he was filing too many grievances about the incident on January 28, 2017 (Doc. 50, pp. 18-21). The counselor received the grievance on June 19, 2017 and responded on June 27, 2017. The response did not indicate that the grievance was untimely. There is no grievance officer's or Warden's response. Plaintiff stated that upon receiving the counselor's response, he sent the grievance to "Springfield." The ARB received it on October 6, 2017 (Doc. 50, p. 17). The grievance was rejected as untimely.

The Court finds Plaintiff credible in his testimony concerning the grievances set forth above based on his demeanor and the seeming truthfulness of his statements. In particular, the Court finds that Plaintiff did timely submit a grievance about PA James but that he received no response from the ARB. The Court further finds that the only grievance related to Defendant Brookhart was submitted on June 3, 2017 but that Plaintiff did not send the grievance to the grievance officer and instead sent it to the ARB. Plaintiff indicated at the hearing that he did not need to appeal any further than the counselor because he already had received the relief he requested (i.e. the cessation of retaliation and harassment).

CONCLUSIONS OF LAW

Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).

The Prison Litigation Reform Act provides:

42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-535 (7th Cir. 1999) (stating that § 1997e(a) of the PLRA "makes exhaustion a precondition to bringing suit" under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025. In Pavey, the Seventh Circuit instructed District Courts to conduct a hearing to determine whether a Plaintiff has exhausted his remedies. Id. 544 F.3d at 742. If a Plaintiff has exhausted his remedies, the case will proceed on the merits. If, however, a Plaintiff has not exhausted, the Court may either allow Plaintiff to exhaust or terminate the matter.

The Court finds that Plaintiff exhausted his administrative remedies as to Defendant James when he submitted a grievance to which he received no response from the ARB. An inmate is required to exhaust only those administrative remedies available to him. See 42 U.S.C. § 1997e(a). The Seventh Circuit has held that administrative remedies become "unavailable" when prison officials fail to respond to inmate grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). Plaintiff submitted his grievance at the institution and received a response from the grievance officer and the warden. He appealed the grievance to the ARB but received no response from the time he sent it in May 2017 to the date of the complaint, July 31, 2017.6

The Court further finds that Plaintiff exhausted as to Defendant Brookhart. In his June 3, 2017 grievance, Plaintiff stated that he wanted "for all harassment to cease from security staff and healthcare staff and the medical indifference to halt" (Doc. 50, p. 18). In responding to the grievance, the counselor received input from Defendant Brookhart who essentially stated that he was not harassing the Plaintiff. The counselor did not otherwise grant or deny the grievance or offer any affirmative relief. At the hearing, however, Plaintiff stated that after the incident in April and thereafter, he no longer was harassed or retaliated against: therefore, he got what he wanted and no longer was required to appeal. See Thornton v. Snyder, 428 F.3d 690, 695-6 (7th Cir. 2005). Defendant offers no case authority to support the proposition that under these circumstances — where a defendant who is aware of a grievance no longer is harassing the inmate — a grievance is not fully exhausted.

In any event, at the time that Plaintiff filed his grievance, the Administrative Code did not require an inmate to do anything more than submit a grievance to his counselor. The Code directs an inmate to "file a written grievance . . . addressed to his or her institutional counselor." 20 ILL.ADMIN.CODE § 504.810 (as amended on April 1, 2017). There is no provision in the Code which directs an inmate to submit his grievance to the grievance officer once he receives a response from the counselor. Defendants have presented the Court with no evidence that there is an unwritten policy directing an inmate to submit a grievance to the grievance officer once a counselor has responded. Nor is there any evidence that Plaintiff's counselor forwarded the grievance to the grievance officer himself. As such, Plaintiff exhausted all the remedies that were available to him with respect to the claim against Defendant Brookhart.

RECOMMENDATIONS

For the reasons set forth above, it is RECOMMENDED that the Motion for Summary Judgment based on Exhaustion filed by Defendant Travis James on March 6, 2018 (Doc. 36) be DENIED, that the Motion for Summary Judgment filed by Defendant Jake Brookhart on March 19, 2018 (Doc. 43) be DENIED, and that the Court adopt the foregoing findings of fact and conclusions of law.

NOTICE REGARDING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), 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 after 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).

You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.